Nachilala Nkombo v Standard Chartered Bank Zambia Plc (2025/HPC/0024) [2025] ZMHC 69 (8 September 2025)

IN THE HIGH COURT FO ~ T?.!!~~ DRlrn.~~~-E2025/HPC/0024 AT THE COMMERCIAL HOLDEN AT LUSAKA (Civil Jurisdiction) O,~IIA DIVfs,oN I BETWEEN: NACHILALA NKOMBO AND 8 SE p 2~~5 ~ PLAINTIFF STANDARD CHARTERED BANK ZAMBIA PLC. DEFENDANT Before the Honourable Mr Justice K. Chenda on 8 th September 2025 For the Plaintiff For the Defe ndant : Ms M. Mbulo of Mbulo & Partners and Mr I. Simbeye of Malisa & Partners : Mr L, Linyama and Mr J . Chileshe of Eric Silwamba, Jalasi & Linya ma Legal Practitioners JUDGMENT Primary legislation (1) The Securities Act No.41 of 2016 Subsidiary legislation (1) (2) The Securities (Conduct of Business) Rules, S. I. 168 of 1993 The High Court Rules, under Cap. 27 of the laws of Zambia Case Law (1) (2) (3) Hedley Byrne and Co Ltd v Heller & Partners Ltd. (1964) AC 465 Donoghue v Stevenson (1932) AC 562; Blyth v Birmingham Waterworks Co. (1856) 11 Ex 781 (4) Michael Chilufya Sata v Zambia Bottlers Ltd. SCZ Jdt. No. 1 of 2003 (5) (6) (7) (8) Stanbic Bank Zambia Ltd. v A. S. & C. Enterprises Ltd. & Ors (2008) lZR Cavmont Merchant Bank Ltd v Amaka Agric Development Co. Ltd. Caparo Industries Plc v Dickman ( 1990) 2 A C 605 Barclays Bank v Quince Care Ltd ( 1992) 4 All ER 363 (9) Bankers Trust International Plc v PT Dharmala Sakti Sejahtera (1996) CLC (10) Galaunia Farms Limited v National Milling Company Limited (2004) ZRl at p.9-10 (11) Zambia Railways Limited v Pauline S . Mundia and Brian Sialumba (2008) ZR 287 (12) Finance Bank Zambia Ltd. & Anr. v Simataa Simataa -Selected Judgment No. 21 of 2017 at p. J22-23 (13) Afrope Zambia Limited v Anthony Chate & Ors - Appeal No. 160/2013 at p. Jl6. Authoritative texts: (1) (2) The Oxford Dictionary of Finance and Banking (2014) 5 th edition, in Jonathan Law ed. , Oxford University Press: Oxford at p.483 The Bankers Association of Zambia Code of Ethics and Banking Practice, 1 INTRODUCTION 1.1 The business of banking in Zambia has evolved beyond the traditional spheres of personal banking, commercial banking, and corporate and investment banking. 1.2 It now also includes wealth management, defined in certain quarters as the practice of offering high networth individuals investment management, financial advice, and estate and tax planning services as a unified professional service.1 11 J2 1.3 The dispute before Court emanates from a fall-out between a commercial bank and its customer over the provision of wealth management services to the latter. BACKGROUND AND MATERIAL FACTS 2.1 The Defendant is a commercial bank in Zambia whose client portfolio includes the Plaintiff as a high networth individual. 2.2 Through the wealth management services offered by the Defendant, the Plaintiff was invested in a bond offered by a corporate entity in China. 2 .3 Aggrieved by the subsequent performance of the bond, the Plaintiff took out this action by writ of summons and statement of claim filed 15th January 2025 . Broadly, she alleged that her investment in the bonds was induced by fraud and misrepresentation by the Defendant which held itself out as her investment advisor. Further, the Plaintiff alleged that the Defendant was negligent in background checks on the bonds and in sharing of information with her before she invested. The Plaintiff consequently sought the following reliefs - (i) payment of USD320,000 being the sum the Plaintiff expected to receive at maturity of the bond; (ii) damages in the sum of USD180,000 for fraud, misrepresentation and negligence; (iii) damages for inconvenience; J3 (iv) any other relief the Court deems fit; and (v) costs. 2.4 The Defendant reacted with a defence filed on 29 th January 2025, refuting any wrong doing, averring that its role was limited to that of a non-advisory distributor (of investment products by third parties) without extension to being a financial advisor or investment manager. It was alleged that the Plaintiff was responsible for seeking professional advice before investing. The Defendant further averred that it was not privy to, or liable over the contract between the Plaintiff and the issuer of the bond. The Defendant ultimately disputed the Plaintiff's right to relief. 2.5 Pleadings closed with the Plaintiff's reply of 21 st February 2025 in which she insisted that she invested in the bond based on the advice of, and selective disclosure of information, by the Defendant which she complained did not even properly interrogate the performance record of the bond. CASE MANAGEMENT AND ISSUES 3.1 After close of pleadings, a scheduling conference was held and the characteristic Bar-Bench consultation yielded fruit in form of streamlining the case into core issues for interrogation. J4 3.2 They were embodied in the order for directions of 3 rd March 2025 as follows - (i) what was the nature of the contractual relationship between the Plaintiff and Defendant in respect of the Sino-Ocean Land Treasure IV Limited bond (hereinafter referred to as the "Sino bond", "investment" or "product"); (ii) what governed the terms between the Plaintiff and Defendant over the Sino bond; (iii) was the Plaintiff induced to transact in the Sino bond by a fraudulent or other misrepresentation by the Defendant; (iv) was the Defendant negligent in performance of ·its obligations to the Plaintiff over the Sino bond; (v) has the.-Plaintiff suffered any injury over the Sino bond for which the Defendant ought to atone; and (vi) ultimately, is the Plaintiff entitled to any relief against the Defendant? 3.3 After fulfillment of the preparatory directions, the matter was set down for trial. TRIAL AND SUMMARY OF EVIDENCE 4.1 Trial began on 19th June 2025, continued on 24th and concluded on 25th June 2025. JS 4.2 Commendably so because it was issue based and without unnecessary objections from the Bar, a practice that regrettably delays progress in many trials before our Courts. 4.3 The catalogue of witnesses was as follows: 4.3.1 the Plaintiff (or "Ms Nkombo") testified as sole witness for herself; and 4.3.2 3 witnesses for the Defendant namely Mr. Brian Chasimpha (DWI), Ms Monica Shinondo (DW2) and. Ms Chiti Salati (DW3). 4.4 As for bundles of documents adduced, the Plaintiff relied on a bundle re-filed on 18th June 2025, while the Defendant had a primary bundle filed 24th March 2025 and supplementary bundle of 18th June 2025. 4.5 Mention must also be made that the bundle of pleadings filed by the Plaintiff on 24th March 2025 was also utilised at trial. 4.6 A summary of the testimonies at trial is as follows, beginning with the Plaintiff. J6 4.7 Ms. Kombo testified that she was a customer of the Defendant for over 20 years and to-date still holds a priority banking account with the Defendant. Her testimony in chief was based on her witness statement filed 7th April 2025 as well as on the Plaintiff's bundle. 4.8 She testified that as a Priority Banking Client, she regularly received investment and wealth advisory services from the Defendant and maintained a portfolio that included GRZ bonds , and was advised over time by several SCB advisors including DWl and DW2. 4.9 It was her testimony that on or about 21 March 2022, DWl visited her and advised her to diversify from GRZ bonds into a new offshore investment in a Sino-Ocean Land Treasure IV bond (the "Sino bond"), which he described as safe, lucrative, and guaranteed allegedly by the Chinese Government. 4.10 It was her further testimony that despite Plaintiff's desire to invest a smaller amount, DWl insisted on a minimum of USD 200,000, assuring safety and stability. She testified that DWl failed to provide a prospectus or clear risk disclosures, only sharing basic indicative returns via text. J7 4.11 Ms Kombo testified that on 25 March 2022 , DW2 sent the Plaintiff an email with investment proposals including the Sino bond, but with no prospectus or proper risk disclosures. She testified that when asked about risks, she was assured by DWl that fluctuations would be minimal and default was unlikely. 4.12 She further testified she was persuaded by repeated verbal assurances from both DWl and DW2 that the investment was safe and backed by the Chinese Government. She stated that she signed the documents on 28 March 2022, guided by DW2, who told her to confirm knowledge of risks during a verification call with SCB Dubai, even though risks had not been properly explained. 4.13 It was her further testimony that in reliance on these representations and past trust with the bank, she invested and continued to receive investment projections until 6 February 2024, when the bond defaulted and no coupon payment was received. JS 4.14 Ms Kombo testified that upon inquiry, DW2 appeared surprised, later informing her that a default had occurred, referencing a 30 January 2024 encrypted email, which Plaintiff never noticed. She stated that she then requested that the Chinese Government guarantee be enforced, but was instead presented with a letter from an unnamed guarantor and a 111-page restructuring proposal (see p.103-213 of the Plaintiff's bundle) . 4.15 She testified. that she met with the Bank's Managing Director on 8 August 2024 to express concerns about undisclosed risks and was not provided satisfactory answers. She stated that she later discovered that the investment had been underperforming at the time of sale and that the Chinese real estate market., including Sino bonds, was in distress. 4.16 She further testified that material facts were withheld at the time of sale and that both DWl and DW2 failed to provide relevant performance data and misrepresented the bond's risk profile. She also stated that it was also discovered that her investment profile had been inappropriately changed from "moderately aggressive" to "aggressive"' to facilitate the sale (see p. 12-16, 337-346) of the Plaintiff's bundle. J9 4.17 Ms Kombo testified that she made formal complaints to the CompetitioE and Consumer Protection Commission (CCPC), Bank of Zambia, and Securities and Exchange Commission, which complaints were supported by her lawyers, Mbulo & Partners. These complaints appear at p.238, 215 and 233-236 in the Plaintiff's bundle. 4.18 It was her testimony that SEC concluded its investigation and in January 2025 issued a letter (see p.240 of the Plaintiff's bundle) confirming that the Defendant breached the Securities (Conduct of Business) Rules by misrepresenting the product, failing to disclose material risks, and using exclusionary clauses to limit liability. 4.19 She testified that had she been properly informed of the bond's performance and real risks, she would never have invested and she believes the Defendant ignored or concealed information showing the Chinese real estate market was in distress at the time (see p.306- 333 of the Plaintiff's bundle), and that she was misled using deceptive sales tactics. JlO 4.20 Ms Kombo also testified that she alleges fraud as she relied on a message from DWl on 19 February 2024 reaffirming that Sino bond had government backing but this was later denied by the Defendant (see p.243-244 of the Plaintiff's bundle). She stated that she believes the Bank used her trust to push a toxic, high-risk investment without due diligence or honest disclosures. 4.21 She testified that on 11 th August 2024, a financial advisor confirmed that the Sino bond had already been underperforming when it was sold to her. See documents at p.242 and 335 of the Plaintiff's bundle. 4.22 She also testified that the Defendant violated its own Code of Conduct (see p.2 of the Plaintiff's bundle) and terms by failing to protect her .as a priority client who paid fees for personalised care and also that the Defendant failed to ensure only investment-grade products were sold and disregarded their fiduciary duties. 4.23 The Plaintiff was cross-examined by Mr. Chileshe for the Defendant during which she testified as follows. 4.24 She expected to receive USD320,000 from Sino Ocean IV at maturity of the Chinese Bonds Investment and claims it as a relief in this matter even if Sino Ocean IV is not a party. Her reason is because she had a contract with the Defendant not with Sino Ocean IV. Jll 4.25 The Plaintiff testified that despite her witness statement stating that she was not availed with a prospectus showing material risks for the investment, she signed the investment services action form (ISAF) at p.24 of the Defendant's bundle which stated (at p.27 and 28 of the bundle) that she acknowledged receiving the relevant fact sheets, termsheets and prospectuses. She added (with unconvincing demeanour) that she did not complete the ISAF and was just given to sign it. 4.26 The Plaintiff admitted that the ISAF stipulated (at p.32 of the Defendant's Bundle) that she could request for other information or ' ' ~ . copy of the prospectus and that there was no documentation to show she requested as such. She testified (with unconvincing demeanour) that she verbally requested for it. 4.27 The Plaintiff testified that the import of paragraphs 14 and 19 of her witness statement was that she had asked Mr. Chasimpha (DWl) about specific product risks which he disclosed as only minor fluctuations but that he did not provide any historical data or projected performance analysis to substantiate. Further, that Ms. Shinondo (DW2) did not disclose any investment risks at point of asking the Plaintiff to sign the ISAF, and instead deferred to the Plaintiff's conversation with DWl. Jl2 4.28 She also confirmed that in paragraphs 44 and 45 of her witness statement she complained of the Defendant deliberately concealing material risks and failing to disclose them during a verification call with the Dubai Office. 4.29 The Plaintiff was shown a declaration contained in the ISAF (first bullet point at p.27 of the Defendant's bundle) which stated that she understood and agreed that the decision to invest was based on her own independent assessment of the risks without reliance on advice from the Defendant. Also, that she was aware that the investment can be risky. 4.30 She then testified (with unconvincing demeanour) that she did not understand the essence of that declaration. She however, conceded that she did not seek clarification from the Defendant. She also conceded that the language used in the ISAF (at p.27 of the Defendant's bundle) was not too complicated for her as an economist to understand. 4.31 The Plaintiff testified (with unconvincing demeanour) that she was not given a chance to read the ISAF before signing it. J13 4.32 She was shown bullet point 7 of the ISAF at p.27 of the Defendant's bundle which stipulates that she acknowledged that the information therein was distributed on the understanding that the Defendant was not providing professional advice. Further that ~he onus was on the Plaintiff to seek advice from a professional on any questions including law, tax and financial planning. 4.33 The Plaintiff admitted that she did not seek professional advice to explain the first bullet point (at p.27 of the Defendant's bundle). She explained that she had no reason to doubt the inve~tment because , · :-· · she was dealing with a senior wealth advisor from the Defendant. 4.34 The Plaintiff testified that she only spoke to a financial advisor on 11 th August 2024 after the default on the investment. 4.35 She testified that the Client Investment Profile (CIP) questionnaire at p.44 of the Defendant's bundle was signed by her on 26 th March 2022; it was required for the Defendant to understand her investment objectives, risk appetite and match it with a suitable product. 4.36 The Plaintiff admitted that the CIP questionnaire placed her risk assessment rating as "aggressive" meaning that she had a high-risk appetite. Jl4 4.37 She conceded that she signed both the CIP questionnaire and ISAF on 26 th March 2022 and that the former indicated (at p.50 of the Defendant's bundle) that she agreed with rating assessed of her. 4.38 She testified that the document at p.29 of the Defendant's bundle was a Pre-Order Form signed by her on 28 th March 2022, indicating her risk profile as aggressive and the product matching it as SINOCE 4 ¾ 08/05/29, fixed income bonds. 4.39 The Plaintiff was shown the portion of the Pre-Order Form titled Notes but denied (with unconvincing demeanour) that she made an independent decision to invest, insisting instead that she depended on the Defendant as wealth advisor. 4.40 She was shown the ISAF, 3 rd and 6th bullet points (at p.27 of the Defendant's bundle) which stipulated that the Defendant would act as agent to purchase the securities from issuer but have no liability for the investment, which further stated that she agreed and acknowledged that the value of the securities may rise and fall, that it was a risk she was prepared to take and that the Defendant would not be liable for any losses. Jl5 4 .41 The Plain tiff was then asked if by the said provisions she agreed that the Defendant was merely her agent without assuming any liability for losses, to which she denied (with unconvincing demeanour). 4.42 She howeve:r, agreed that the ISAF, CIP questionnaire and Pre-Order Form were the contractual documents that governed her relationship with the Defendant. 4.43 The Plaintiff conceded that she had no evidence to prove the assertion in paragraph 6 of her witness statement t hat she DW 1 on 21 st March 2022 at her sister's house as per paragraph 6 of her witness statement. 4.44 As for evidence to support her statement (in paragraph 10 of her witness statement) that DWl informed her that the investment was backed by the Chinese government, the Plaintiff pointed to a message . ~ . thread between her and DWl (at p.234 of the Plaintiffs bundle). 4.45 However, she conceded that DWl merely stated that the issuer had exposure to the government not that it was backed by the government. Jl6 4.46 She also conceded that because of her trust in DWl she did not independently research on the investment. Further that because she fully trusted the Defendant, she did not conduct an independent due diligence before transacting. 4.4 7 The Plaintiff testified that p.64-65 of the Plaintiff's bundle was a transcription of her telephone conversation with Standard Chartered Bank Dubai (SCB Dubai) and that it partly contradicted her witness statement (paragraphs 22 and 23) that she was not made aware of the risks of the investment. 4.48 However, she testified (with unconvincing demeanour) that DW2 had verbally advised her to answer in the affirmative to all questions on the said call. 4.49 When shown paragraph 46 of her statement of claim and claim II for USD 180,000 as liquidated damages for fraud, misrepresentation and negligence, the Plaintiff testified that it comprised all bills she had to pay following the default on the investment. They included legal bills, school fees and mortgage bills. 4.50 However, the Plaintiff conceded that she did ·. hot have any documentation before Court to prove how she computed the USD180,000. Jl7 4.51 The Plaintiff conceded that despite pleading in paragraph 34 of the statement of claim that the Defendant sold her a toxic product from inception, the message thread at p.92 of the Defendant's bundle showed that she received a coupon payment and expressed being a happy investor. 4.52 She testified that in 2022 when she signed the CIP Questionnaire, the statement at item 8 (p.4 7 of the Defendant's bu1~dle) that she did not depend on the majority of savings and investments with the bank for basic living expenses was true. The Plaintiff thus denied that the averment in paragraph 24 of the statement of claim was misleading. 4.53 The Plaintiff testified that there was a restructuring proposal for the bond in issue, with details discussed in the Defendant's email at p.114 of the Defendant's bundle. She had an opportunity to participate in the restructuring but did not do so because of lack of clarity about it. 4.54 The Plaintiff testified that the emails at p. 77 and 78 (in the Plaintiff's bundle) were her proof of having requested for clarity over the restructuring. She however conceded that the said email of 20 th February 2024 predated that of the Defendant (at p.114 of the Defendant's bundle) dated 8 th August 2024 which spoke of the restructuring. J18 4.55 She conceded that the Defendant was not party to the Restructuring Support Agreement which instead had Sino Ocean Group Holdings, Sino Ocean Land (HK) Limited, initial participating creditors (which included her) and the information agent. 4.56 The Plaintiff testified that she currently works as country director for Bridges to Prosperity. Her qualifications include a degree in economics from UNZA and master's degree in Public Management from Germany. 4.57 She has previous experience as a lay investor in the bond market having invested in 2 or 3 GRZ bonds through the Defendant. She was aware that there were risks involved and it was explained to her. 4.58 She denied that she was not a lay investor when transacting over the bonds in issue. 4.59 The Plaintiff was re-examined by Ms. Mbulo during which she clarified as follows. She testified (with unconvincing demeanour) that the ISAF was completed by DW2 as relationship manager who directed the Plaintiff to the signature page to ac-.:.ion (p.28 of the Defendant's bundle) adding that there was nothing to worry about in the small print, after the Plaintiff that she did not have experience. J19 4.60 The Plaintiff testified that the CIP questionnaire had incorrect ,, ' l' : information looking at p.46 of the Defendant's bundle which misstated that she had a Master's Degree in Environmental Management and also her years of experience in wildlife. 4.61 She also testified that DW2 asked her some general questions then gave her the CIP questionnaire to sign saying it w:..s· just procedural with nothing to worry about. 4.62 The Plaintiff also clarified that the Defendant's email at p.114 of the Defendant's bundle was in response to her query for an explanation of the 111-page restructuring agreement which she did not understand. It had been preceded by information froIIl the Defendant . • =~L . that following the default there would be a restructuring proposal. 4.63 She testified that as at 20th February 2024, there was already a default announced hence her email (at p. 77-78 of the Plaintiff's bundle). 4.64 The Plaintiff closed her case on that note. J20 4.65 The Defendant opened its case with the testimony of Mr. Brian Chasimpha (DWI) whose evidence in chief was based on his witness statement of 7 th April 2025 and the Defendant's bundle of documents. His designation was head, client relationships and international banking. 4.66 It was his testimony that in early 2024, the Plaintiff approached the Defendant regarding reinvesting in GRZ bonds and he instructed DW2 to send investment proposals to the Plaintiff. 4.67 It was his further testimony that on 25 March 2022, DW2 emailed the Plaintiff various bond options, including the Sino Bond and the Plaintiff responded the same day requesting documentation of the Sino bond for execution on 26 March 2022 (see p .6-11 of the Defendant's bundle). 4.68 He also testified that on 28 March 2022, DW2 shared the application documents for an investment of USD203,438 1n the Sino Bond, including terms and conditions. 4.69 Mr Chasimpha testified that the Defendant conducted a Client Investment Profile (CIP) assessment for the Plaintiff, which returned a score of 5 - aggressive, indicating suitability for the investment (see p.16-23 of the Defendant's bundle). J21 4. 70 He testified that the Plaintiff received all necessary documentation relating to the Bond, and adequately provided all risk disclosures in the Risk Disclosure Statement contained in the Indicative Term Sheet. (see p.31-33 of the Defendant's bundle). 4. 71 He further testified that the Sino Bond held a Baa3 rating from Moody's at the time which translated into an investment-grade indicating moderate credit risk and suitable for stable returns (see p.62 of the Defendant's bundle). 4. 72 Mr Chasimpha testified that the Plaintiff received key documents: the ISAF, indicative term sheet, and risk disclosl;-r~s, including a customer declaration acknowledging understanding of associated risks and the Defendant's non-liability as a distributor (see p.24-27 and 32 of the Defendant's bundle). 4. 73 It was his testimony that the Plaintiff confirmed her understanding of the investment and associated risks during a sales assurance call conducted by SCB Dubai compliance team, the transcript of which is on record. He also stated that the Plaintiff consented to the call being recorded. J22 4.74 He further testified that at no time did he or any other representative of the Defendant coerce or mislead the Plaintiff and that the Plaintiff made an independent, voluntary investment decision based on the information provided to her. He also stated that no reassurances or ,· representations were given about low or no risk/risks, including possible issuer default to the Plaintiff by him or any other representative of the Defendant (see p.68-74 of the Defendant's bundle). 4. 75 Mr Chasimpha testified that the Defendant sent default notifications to the Plaintiff on 27 th October 2023 and 30th January 2024 (see p. 93-96 of the Defendant's bundle) and as at 19 July 2024, a Restructuring Support Agreement was shared with the Plaintiff by the Defendant (seep. 116-226 of the Defendant's bundle). 4. 76 He testified that the Defendant did not act as a financial advisor nor assume fiduciary responsibility but functioned soicly as a product distributor without access to the specific contract between the Plaintiff and the Bond Issuer. 4. 77 He further testified that the Plaintiff's longstanding relationship with the Bank did not negate the Plaintiff's responsibility to assess investments independently. J23 4.78 It was Mr. Chasimpha's testimony that he maintains that the Defendant acted in good faith, complied with industry norms, and denies any wrongdoing and therefore all claims of misrepresentation or coercion are baseless and will be contested at trial. 4.79 Mr. Chasinipha (DWl) was cross-examined by Mr. Simbeye for the Plaintiff during which he testified as follows. 4.80 His former business card for the role of Senior Investment Advisor Wealth Management Zambia and Southern Cluster appears at p.1 of the Plaintiff's bundle. 4.81 He gave the card to the Plaintiff but the duties he executed in relation to her were not advisory and different from that depicted on the card. 4.82 Mr. Chasimpha admitted that he is the one who introduced the Plaintiff to the bond in issue. 4.83 He initially testified that the issuer was Sino Ocean Land IV to the best of his .knowledge but when shown the restructuring support agreement (at p. 95 of the Plaintiff's bundle) he stated that it indicated Sino Ocean Group Holdings Limited as issuer. 4.84 He also conceded that Sino Ocean Group Holdings Limited is not party to the ISAF or even mentioned. J24 4.85 Mr. Chasimpha admitted that he did not do a due diligence exercise on the issuer, he did not ask for its registration and identity documents, he has never seen them nor even the issuer's logo. He has not given the Plaintiff any such documents and does not know whether the Plaintiff had any previous dealings with the issuer. 4.86 He testified too that the security name can be different from the issuer name as with the bond in issue. 4.87 Mr. Chasimpha admitted that the Plaintiff and the Defendant were the parties to the ISAF. 4.88 He had a verbal discussion with the Plaintiff after which he asked DW2 to email investment proposals to the Plaintiff. The discussion was not recorded and he was not aware of having told her that he was a wealth and investment adviser and carried himself as such. 4.89 Mr. Chasimpha admitted that he had nothing to show the Court to dispute what the Plaintiff said he said. J25 4. 90 Mr. Chasimpha testified that DW2 sent the proposals to the Plaintiff by email dated 25th March 2022 (at p.6-11 of the Defendant's bundle) and the ISAF was not attached nor any document from Sino Ocean Group Holdings Limited such that the Plaintiff did not have the latter documents at the time she was replying saying she was fine with the proposals. 4.91 He admitted that in the investment in issue, the party at risk was the Plaintiff as investor. Further that in order to rnitigate the risk, it was important for the Defendant to assess the risk level of the issuer, which the Plaintiff was likely to suffer. He did not personally do that assessment before the Plaintiff invested- but he only heard that the one who processed the documents did. 4. 92 Mr. Chasimpha maintained that as per paragraph 10 of his witness statement, the Defendant provided the Plaintiff with all necessary information on the bond and adequately provided all risk disclosures per termsheet at p.31-33 of the Defendant's bundle. 4.93 He however, conceded that he did not know the nature of business of Sino Ocean Group Holdings Limited but he knew that there were unforeseeable risks in dealing with a company of unknown identity. J26 4.94 He testified that the Sino bond was rated Baa3 by moody's which made it investment grade owing to moderate credi1' :risk and stable returns. He pointed to p.62 of the Defendant's bundle which had a document authored by the Defendant titled "Africa Fi Focus List - March 2022 Capital Market Products and Solutions. He stated that the document was never shared with the Plaintiff. 4. 95 He stated that he did not inform the Plaintiff whether the investment was good or bad. He told her that it had a moderate credit risk, was investment grade and he left it to her to decide. 4.96 The document at p.54 of the Defendant's bundle was issued by the SCB Group Wealth Management Advisory department which encompasses two possible streams namely advisory services and wealth management products depending on the ma'.rket. 4.97 Mr Chasimpha denied that when he met the Plaintiff he ·was coming from that department. He however admitted that the business card at p. l of the Plaintiff's bundle correctly depicted his role as Senior Investment Advisor, Wealth Management Zambia and Southern Cluster and that he interacted with the Plaintiff in t hat capacity. He maintained that he was not giving any advisory services. J27 4.98 Mr. Chasimpha admitted that contrary to paragraph 12 of his . 1_· ,' statement, the ISAF was not actually emailed to the Plaintiff on 25 t h March 2022. 4. 99 He insisted that the ISAF spoke about all the risks associated with the product. He admitted that he was not present when it was signed nor privy to the discussions the Plaintiff could have had with the Defendant's personnel who handled the pape~~ork. 4.100 Mr. Chasin1pha admitted that despite mentioning in paragraph 13 of his witness statement that the Defendant was acting as agent distributing third party instruments, he did not disclose who the principal was nor does the ISAF. 4.101 He was not privy to the Plaintiff's discussions witl-i' other employees of the Defendant. 4.102 Mr. Chasimpha testified that the Plaintiff was emailed investment proposals with critical information including the ISFIN which had more information on the bond. There was information given to her in person such as the ISAF, there was a quality a _~s:u.rance call with SCB Dubai and also a call from the local treasury office with more information. J28 4.103 Mr. Chasimpha stated that as per paragraph 18 of his witness statement, the Defendant forwarded the notice of events of default to the Plaintiff (see p.93-96 of the Defendant's bundle). It showed the issuer as Sino Ocean Land Treasure IV Limited. He admitted that the ISAF did not contain the full name of the issuer but insisted that the ISIN would give access to further information . . ' 4.104 He conceded that the name Sino Ocean Land Treasure IV Limited did not appear in any emails to the Plaintiff or documents given to her to sign. 4.105 The email from the Defendant to the Plaintiff (at p.114-115 of the Defendant's bundle) speaks of the Restructuring Support Agreement (RSA) and Sino Ocean Group Holdings Limited as issuer but that name is not mentioned in the documents the Plaintiff signed. 4.106 He agreed that there was no evidence of the industry practices alluded to in paragraph 22 of his statement which he states the Defendant adhered to in dealing with the Plaintiff. : · 4.107 Mr. Chasirnpha conceded that other than the RSA he did not know of any agreement between the Plaintiff and issuer. J29 4.108 He also stated that the Defendant was the drafter of the ISAF and its terms, which the Plaintiff as investor could accept or not. 4.109 The Plaintiff had a longstanding contractual relationship with the Defendant. It was one of good faith and the Plaintiff was a priority client. 4.110 When re-examined by Mr. Chileshe, Mr. Chasimpha clarified that relationship managers from the Defendant would inform customers of products available and his role was to provide further details of the products in terms of the Defendant's views of the products to help the customers understand them. 4.111 The Defendant's role was just to distribute products issued by third parties and there was no due diligence exercise as if the issues was being on boarded as a customer. 4.112 The Defendant provides customers with information over the issuer and also with the Defendant's terms and conditions for distribution of the product hence the signed ISAF. 4.113 The introduction of products is done at SCB group level beyond the Defendant. The Defendant shares only what it receives and could not access the documentation relating to Sino Ocean Land Treasury IV Limited which was the issuer. J30 4.114 The Plaintiff received two inception emails from the Defendant. Firstly, attaching proposals. Secondly, attaching the ISAF and other supporting documents. The documents brought the Plaintiff and issuer together whilst the Defendant just distributed the product. Every bond is assigned an ISIN and it enables investors to identify the bond including details of performance. 4.115 Mr. Chasimpha was also re-examined by Mr. Linyama during which he testified that there are different instances where the name of a bond will be different from that of the issuer. One is where the bond is issued by a subsidiary. Another is where there is no subsidiary but the bond is given a preferred name other than that of the issuer. 4.116 DW2, Ms. Monica Shinondo testified in chief based on her witness statement of 7 th April 2025 supported by the Defendant's bundle and supplementary bundle of documents. She was a sen10r relationship manager of the Defendant. 4.11 7 Ms Shinondo testified that as Relationship Manager at the Defendant Bank, she was closely involved in the Plaintiff's bond investment process. J31 4.118 She stated that on 25th March 2022, she emailed the Plaintiff proposals for various bond investments, including Government of Zambia Bonds and the Sino Ocean IV Bond (Sino Bond), along with indicative cashflows (see p.6-11 of the Defendant's bundle). 4.119 She further stated that the Plaintiff voluntarily expressed interest in the Sino Bond and requested to proceed with documentation on 26 th March 2022 as per the Bank's standard procedure, the Plaintiff completed an updated Client Investment Profile (CIP) on 26th March 2022, as her previous CIP had expired. The new CIP rated her risk appetite as Level 5 - Aggressive (see p.16-23 of the Defendant's bundle). 4.120 Ms Shinondo testified that at no time was the CIP manipulated as the assessment was based solely on the Plaintiff's responses. 4.121 She stated that on 29 th March 2022, she sent the Plaintiff an email confirming her "aggressive" risk rating and shared key documents: ISAF, Terms and Conditions, and the Indicative Term Sheet (see p.66-67 of the Defendant's bundle. These included risk disclosures per industry standards. J32 4.122 She further stated that the Plaintiff was advised of and participated in a sales assurance call by the compliance team in Dubai, confirming her understanding of the investment. She stated that the call was recorded with the Plaintiff's consent, a.11.cli the transcript shows the Plaintiff confirmed the risks had been explained. (see p.64-65 of the Defendant's bundle). 4.123 Ms Shinondo stated that periodically updated the Plaintiff on her investment portfolio and that the Plaintiff after receiving a USD 6,000 coupon, the Plaintiff expressed satisfaction an.d called herself ~ . ··. a "happy investor" (see p.92 of the Defendant's bundle). 4.124 She testified that following signs of default by the Issuer, Sino Ocean IV, the Bank promptly relayed notices of default and shared trustee updates with the Plaintiff per regulatory requirements (see p.93-96 of the Defendant's bundle). She stated that a notification was also sent on 27th October 2023 (see p.97 of the Defendant's bundle). 4.125 She concluded in chief by affirming that the Defendant acted in good faith at all times. She denied any wrongdoing or failure to disclose material information and stated that all claims to the contrary are baseless. J33 4.126 Ms Shinondo (DW2) was cross-examined by Ms. Mbulo during which she testified as follows. 4.127 The Africa Fl Focus List memorandum (at p.54 of the Defendant's bundle) highlighted at p.55 that there was a "likelihood of higher defaults in China" and the Chinese bond investment featured in the memorandum was the one in issue herein. 4.128 Ms. Shinondo conceded that the memorandum was available internally for the Defendant at the time that she sent investment proposals to the Plaintiff but it was not shared with the Plaintiff. 4.129 It was her evidence that the risk of "likelihood of higher default in China" was not specifically indicated by the Defendant to the Plaintiff which instead stated the general risk possibility in the ISAF and in the Pre-Order Form's risk disclosure statement at p.31 of the Defendant's bundle. 4.130 Ms. Shinondo confirmed that by the time that the Plaintiff was replying by email that she was fine with the investment proposals (see p.6 of the Defendant's bundle) the conditions relating to the bond had not been shared with her. J34 4.131 She admitted that the Africa Fl Focus List memorandum highlighted some risks about the investment (at p.55 of the Defendant's bundle). When showed the document at p.326 of the Defendant's bundle which spoke of a wave of defaults including Sino Ocean Land IV, she denied that at the time of selling the product to the Plaintiff, the risk had materialised and that default had occurred. 4.132 Ms. Shinondo testified that during the quality a~:; urance call risks were discussed with the Plaintiff. When referred to a letter from the Defendant to the Securities and Exchange Commission (at p.1 of the Defendant's bundle) she testified that the Defendant introduced and sold the bond in issue to its customers like the Plaintiff as the target market was those with bank accounts with the Defendant. She also confirmed that the letter stated that the Defendant was required to use qualified officers to sell its products. 4.133 She conceded that she did not personally conduct a due diligence exercise on the product before selling it to the Plaintiff. She testified that such an exercise was conducted at SCB Group Level. 4.134 Proof of that due diligence was at p.31 of the Defendant's bundle which showed that the bond was rated Baa3 by Moody's. J35 4.135 Besides checking Moody's an independent assessment was believed by Ms. Shinondo to be done at group level but she had no evidence of it. 4.136 When shown the Defendant's code of conduct and ethics (appearing from p.236 of the Defendant's bundle and the second paragraph at p.248 under "Think Client"), Ms. Shinondo confirmed that the Defendant hold itself out to identify market trends. 4.137 She testified that the Defendant checked the market trend before the product was sold to the Plaintiff and recognised that the product was tanking. 4.138 Ms. Shinondo also recognised that (at p.273 of the Plaintiff's bundle) the code spoke of fair outcomes for customers but she denied that the Defendant was in breach and insisted that Uk Plaintiff needed to seek ind~pendent advice before transacting. 4.139 She confirmed that the code applied to all dealings with customers. It was her testirnony that she assisted the Plaintiff with filling out the ISAF and other forms by writing out responses for the Plaintiff and reading out the contents to her. J36 4.140 The entire process took about an hour when questioned over the investment details (at p.24 of the Defendant's bundle) Ms. Shinondo testified (with unconvincing demeanour) that she explained to the Plaintiff what ISIN means and where to find the details. 4.141 Ms. Shinondo testified that the ISAF was signed on 26th March 2022 and that the Plaintiff's risk profiled was changed on the same day from moderately aggressive. When shown the docu::::nent at p.327 of the Defendant's bundle, Ms. Shinondo accepted that the Plaintiff's risk profile was changed on 28th March 2022. 4.142 It was her evidence that when the Plaintiff sought clarity over the restructuring, the Plaintiff met with her superiors. Further that the Defendant guided the Plaintiff to prepare the corporate action ... ,.-·:, ' document at p.71 of the Plaintiff's bundle. Some of the documents given to the Plaintiff for the restructuring outlined the steps and the Plaintiff dealt with Ms. Shinondo's superiors. 4.143 The Plaintiff has been banking with the Defendant for over 20 years and the Defendant has handled her savings, investments and other transactions. J37 4.144 The relationship was longstanding and it was not the Defendant's position the Plaintiff should assume the Defendant's products could not be trusted. Instead the Plaintiff was required to conduct her own independent assessment. 4.145 Ms. Shinondo was re-examined by Mr. Chileshe and clarified as follows. She had sent an email with proposals to the Plaintiff on 25th March 2022. 4.146 A second email was sent by her to the Plaintiff attaching documents signed by the Plaintiff such as the ISAF and term sheet. 4.147 The Africa Fl Focus List memorandum at p.54 of the Defendant's bundle was available but it is an internal document that the Defendant does not share with customers. 4.148 The risk of the product set out (at p.55 of the Defendant's bundle) was discussed with the Plaintiff. Further the ISAF and the term sheet indicated that there was a risk of default and the country of default was specified as China. J38 4.149 The Defendant's target customers for the bond was those with bank accounts like the Plaintiff, the bond in issue was introduced to the Plaintiff by the Defendant. The risk had not materialised at the time the Plaintiff signed the forms, the investment was okay and the Plaintiff even received two coupon payments. 4.150 The Defendant identified the market trends and did market research hence the indication in term sheet that it was investment in term sheet that it was investment grade per Baa3 rating by Moody's. The Defendant did a due diligence check and the product was not failing at the time the Plaintiff invested. However, the Plaintiff was required to do her own assessment before and get legal advice investing. 4.151 When it came to assisting the Plaintiff fill out the forms, she was given to read through, acknowledge and sign. 4.152 Ms. Shinondo closed her testimony by clarifying that the Plaintiff consulted her over the restructuring documents at p.93-96 of the Defendant's bundle but it was dealt with in a meeting between the Plaintiff and her superiors. J39 4.153 Ms. Chiti Salati (DW3), the Defendant's head legal- wealth and retail banking, southern africa testified in chief based on her witness statement of 7 th April 2025 supported by the Defendant's bundle and supplementary bundle of documents. 4.154 Ms. Salati testified that on 7 th February 2011, the Defendant, through its then Managing Director, sought approval from the Securities and Exchange Commission to expand its product range, including offshore fixed income instruments. The SEC responded positively, and on 3 rd May 2011, the Defendant submitted further product details leading to SEC's approval on 11 th May 2011. The Defendant relying on this approval, launched the expanded product offering (see p.1-3 and 5 of the Defendant's bundle). 4.155 She further stated that on 25th March 2022, DW2, sent the Plaintiff investment proposals, including GRZ Bonds and the Sino Ocean IV Bond ("Sino Bond") with indicative cashflows which constituted an invitation to treat. The Plaintiff responded the same day, expressing willingness to proceed (see p.6-11 of the Defendant's bundle). 4.156 It was Ms. Salati's testimony that the Defendant through DW2 sent application documents for an investment of approximately USD 203,438 in the Sino Bond (see p.66-67 of the Defendant's bundle) which include: J40 Investment Services Action Form (ISAF) • • Terms and Conditions • Indicative/Local Bond Term Sheet 4.157 She further testified that these documents represented the complete contract between the parties and that the Plaintiff also had a separate, direct relationship with Sino Ocean IV. 4.158 It was Ms. Salati's testimony that before execution, the Defendant conducted an investment profile and risk assessment, confirming that the Plaintiff's Client Investment Profile was suitable for the Sino Bond (see p.41-51 of the Defendant's bundle). 4.159 She testified that the Defendant provided full doc umentation and risk disclosures and the Plaintiff acknowledged and accepted the risks by signing the ISAF on 28th March 2022 (see p.24-30 of the Defendant's bundle). 4.160 Ms . Salati 1n her testimony denied any negligence or misrepresentation by the Defendant, asserting \hat the Plaintiff made the investment decision independently with all material facts disclosed. 4.161 She testified that the ISAF made it clear that the Defendant acted only as a distributing agent for the Issuer and held no liability for the Plaintiff's investment decisions. J41 4.162 She further testified that during a post sales assurance call with the Defendant's SCB, Dubai office, the Plaintiff confirmed her understanding of both the nature of the investment and her relationship with the Defendant (see p.64-65 of the Defendant's bundle). 4.163 Ms . Salati concluded her testimony in chief by stating that the Defendant acted in line with industry standards and regulatory requirements, and the Plaintiff is bound by the terms of the agreements she freely signed. 4.164 Ms. Salati (DW3) was cross-examined by Ms. Mbulo during which she testified as follows. She confirmed that she was in Court as a representative of the Defendant who reviewed the matter not as an independent observer but as the head of legal for a unit in the Defendant. 4.165 It was her testimony that she would not be expected to give any evidence harmful to the Defendant's position. J42 4.166 Ms. Salati also conceded that she was not personally involved in the investment discussions with the Plaintiff, has no first-hand knowledge of the representations made by the Defendant's staff to the Plaintiff and that most of her testimony in chief is based on what she was told and what is on file. 4.167 It was her testimony that the proposals mailed by DW2 to the Plaintiff (appearing from p.6 of the Defendant's bundle) were just an invitation to treat and because the Plaintiff had to select one. 4.168 She agreed that its not only the documents mentioned in paragraph 12 of her witness statement that governed the Plaintiff's relationship with the Defendant. 4.169 It was her evidence that based on the ISAF and termsheet, the Plaintiff had a separate agreement with the issuer. 4.1 70 She acknowledged that the ISAF bore signatures of the Defendant's employees (at p.28 of the Defendant's bundle) not that of the issuer, but it required an explanation. J43 4.171 Ms. Salati agreed that the Defendant is regulated by SEC and part of the relevant regulations are the Securities (Conduct of Business) Rules. She observed when referred to p.231 of the Plaintiff's bundle that SEC found the Defendant culpable of breaching the said regulations for failure to disclose material documents. 4.1 72 When asked, she stated that she needed to review the regulations before answering whether they did not permit disclaimers. 4.1 73 Ms. Salati recognized DWl 's business card at p.1 . 9f the Plaintiff's bundle depicting him as Senior Investment Advisor. She however denied that the Defendant held itself out as an investment advisor in the context of the product in issue. 4.174 She confirmed that p.68 of the Defendant's bundle featured the Defendant's own terms and conditions which applied to multiple products. She admitted that clause 3.1 spoke of the Defendant providing occasional advisory services. 4.175 When referred to the letter at p. 1 of the Defendant's bundle, Ms. Salati agreed that the intention of selling the product was to help the Plaintiff grow her wealth but added that it had to be in the context of the product. J44 4.176 When referred to paragraph 39 (b) of the defence averring that the Defendant was not responsible for independently verifying the performance and market conditions of the bond, she denied that it was negligent of the Defendant to sell a product without verifying performance and its market conditions. 4.177 Ms. Salati also denied that the product was failing at the time it was sold to the Plaintiff. 4.178 When shown the Africa Fl Focus List narration of "likelihood of higher default in China" (at p.55 of the Defendant's bundle), Ms. Salati declined to comment saying it was outside the remit of her responsibility in the Defendant. 4.1 79 She was aware of the restructuring and sat in meetings with the Plaintiff but could not speak to the effect on che Defendant's investment or the certainty of value to be received, citing that the Defendant is not party to the restructuring. 4.180 She agreed that the Plaintiff is a customer of the Defendant and with the statement that the Defendant owed the Plaintiff a duty to ensure a good product was sold to her. J45 4.181 When re-examined by Mr. Chileshe, Ms. Salati clarified that the ISAF was signed by the Plaintiff as applicant to enter into a relationship with the issuer of the bond while the Defendant's role was limited to distributor of the bond. The ISAF and termsheet have obligations and parameters of the relationship between issuer and the investing customer. 4.182 The ISAF was signed by the Defendant's staff (at p.28 of the i • · Defendant's bundle) under heading "Bank Use" as part of internal procedure to verify that it was correctly filled in and not execution for the Defendant as counter party. 4.183 In terms of paragraph 39 (b) of the defence , the Defendant denied that it acted negligently as all necessary verifications were done including ensuring that the product was investment grade. 4.184 She supported paragraph 40 of the defence that the Defendant provided the Plaintiff all relevant information received from the issuer. However, Ms. Salati conceded that the prospectus was not given to the Plaintiff adding that under the ISAF it was available on request which she believed the Plaintiff did not mak e. J46 4.185 Ms. Salati testified that indeed the Defendant owed the Plaintiff a '• ;.· duty to sell a good product. She stated that the Defendant checked to see that the product was investment grade, and rated by one of the big 3 international rating agencies making it a viable investment at the time it was sold to the Plaintiff. 4.186 Ms . Salati concluded that the Defendant fulfilled its duty through the information on the bond's rating and the information given to the Plaintiff. 4.187 On that note the Defendant closed its case. CLOSING SUBMISSIONS FROM THE BAR 5.1 After conclusion of trial, the parties tendered final written submissions as follows- i) ii) the Plaintiff on 27th June 2025; the Defendant on 1st July 2025; and iii) the Plaintiffs' reply on 4 th July 2025. 5.2 The Plaintiff's final submissions covered the following broad areas of alleged infractions by the Defendant: (i) misrepresentation; (ii) negligence; (iii) fraud; and (iv) breach of fiduciary duty. J47 5.3 It was argued that the Plaintiff was induced to invest by a fraudulent representation made by Mr. Chasimpha that the bond was backed by the Chinese government when in fact not. The case of Derry v Peek (1889) 14 App Cas 337 was cited to flag the said conduct as a fraudulent misrepresentation described as a false statement made knowingly without belief in its truth or recklessly with intent to induce reliance. 5.4 It was also submitted that Ms. Shinondo was blame worthy of a negligent misrepresentation that induced the Plaintiff to invest. The case of Hedley Byrne and Co Ltd v Heller & Partners Ltd.1 11 was cited to canvass the Plaintiff's argument that because of the special relationship. between the Plaintiff and the Defendant (banker - customer) the Defendant had a duty to exercise reasonable care in providing information. 5.5 It was argued that the Defendant breached that duty through Ms. Shinondo who sent email proposals without includi ng information of risks that had materialised. Also, through Ms. Shinondo processing the ISAF without disclosing actual risks, fast tracking signing and also informing the Plaintiff to answer in the affirmative on the SCB Dubai verification call. J48 5.6 The submission was that the aforesaid left the Plaintiff little opportunity to independently assess the investment. 5. 7 As for negligence the Plaintiff cited a number of cases to explain the elements said to be: (i) existence of a duty of care owed by the .. Defendant to the Plaintiff; (ii) breach of that duty; and (iii) damage suffered by the Plaintiff. 5.8 The cases included Donoghue v Stevenson1 21; Blyth v Birmingham Waterworks Co.1 31 and Michael Chilufya Sata v gu_mbia Bottlers Ltd.14 1 5. 9 The Plaintiff argued that the Defendant owed her a duty of care to verify the performance and market conditions of the bond as well as to disclose known risks, share a prospectus and a market analysis. 5.10 It was argued that the Defendant's omission to do ~0, amounted to a breach. Further that the incident of the breach was confirmed by the findings of SEC against the Defendant. 5.11 The Plaintiff argued that the damage sustained was the failure of her investment and costs incurred for legal redress. J49 5. 12 Fraud was argued as an extension of the arguments advanced to canvass fraudulent misrepresentation. Emphasis has been placed on the Plaintiff's testimony that Ms. Shinondo told her to answer on the SCB Dubai call that she understood the risk of investing when according to her non-had been explained. 5.13 As for breach of fiduciary duty it was argued that the Defendant was a fiduciary of the Plaintiff as beneficiary and that the resultant duty required the Defendant to act with utmost good faith, trust, confidence and candor. An unspecified edition of Black's law dictionary was cited as authority for definition of th :,; -said concepts. 5.14 The Plaintiff also argued that the Defendant had a duty to act with reasonable care and skill in the services provided to the Defendant. S. l 16(2)(b) of the Securities Act( 11 and the case of Stanbic Bank v A. S & 0r.s( 5 1 were cited as authorities. 5.15 The Plaintiff argued that breach by the Defendant ~~0 $ characterized by: (i) failure to conduct proper due diligence on the product; (ii) withholding information from the Plaintiff on material risks of default in China; (iii) inducing the Plaintiff to give confirmation of risk awareness on the SCB Dubai call; JSO ·,.,·. (iv) misrepresenting the riskiness of the product in the ISAF; and (v) false assurances of the product being guaranteed by the Chinese government. 5.16 Based on the foregoing the Plaintiff concluded as follows of the core contentions: (i) nature of contractual relationship - that it arose from the Plaintiff's status as a customer and from the bond subscription documents; (ii) governing terms between the Plaintiff and th e Defendant over the bond- same as (i) to include special care for a priority client of over 20 years; (iii) whether there was inducement to invest through misrepresentation - that there was based on the submissions earlier on the subject; (iv) whether there was negligence - that there was for failure to exercise care and skill in advising the Plaintiff and executing the transaction; (v) whether there is mJury for which the Defendant ought to atone - answered by the Plaintiff in the affirmative; and JSl (vi) entitlement to relief - the Plaintiff closed off that on a balance of probabilities it was entitled to all the reliefs prayed for against the Defendant. 5.1 7 The gravamen of the Defendant's final submissions was its proposition that: (i) the product 1n issue sold to the Plaintiff was of the type approved by SEC (a fixed income security ("FIS"); (ii) the contractual framework as between the Defendant and the Plaintiff was in the form approved by SEC; (iii) the Defendant was a non-advisory distributor of the product which was an off shore bond being traded on the secondary market and in the absence of advice from the Defendant to the Plaintiff, there was no obligation to background check the product and verify its performance and market conditions; (iv) the transaction documents spelt out the limited role of the Defendant, specified possible risks (credit, interest, currency), set out disclaimers and that the onus was on the Plaintiff to seek independent advice and ultimately decide whether to invest; J52 (v) the Plaintiff freely and voluntarily decided to invest and expressed happiness with its performance before default; (vi) the Plaintiff absented herself from the restructuring process thereby failing to mitigate her losses; and (vii) a judgment against the Defendant would fortify the negative publicity against it, harm its reputation and cause a systemic shock in the country for provision of similar services and ultimately hinder development of the Zambian Capital markets. 5.18 The Defendant concluded that the Plaintiff had failed to prove her case on a balance of probabilities and it ought to be dismissed. 5.19 The Plaintiff had the final say with submissions in reply tendered on 4th July 2025. 5.20 It was agued by the Plaintiff that the Defendant's submissions were an incorrect and oversimplified view of the case. 5.21 The Plaintiff has reiterated that the case is founded on the Defendant's deceptive conduct, including false assurances of the bond's safety and purported Chinese government backing akin to GRZ bonds held by the Plaintiff. J53 5.22 The Plaintiff also reiterated that the case foundations include omission of material risks specific to the issuer, coercive sales tactics, failure to conduct due diligence and manipulation of the Plaintiff's risk profile all of which induced her to invest USD200,000 and lose out. 5.23 The Plaintiff insisted that the Defendant acted in breach of statutory duty under s. l 16(2)(b) of the Securities Actl 1l which calls for fair and ethical treatment of customers. 5.24 It was highiighted that the regulator SEC had found the Defendant culpable of infractions and sanctioned it. 5.25 As for the Defendant's argument that its role was that of an agent distributing the Sino bond, the Plaintiff argued that since the principal was not disclosed, the Defendant should be taken as the contracting party and liable as such. The case of Cavmont Merchant Bank Ltd v Amaka Agric Development Co. Ltd.( 61 was cited as authority. 5.26 The Plaintiff also cited the case of Caparo Industries Plc v Dickman( 7 1 to buttress the point on a duty of care that where reliance is foreseeable, proximity exists and it is fair, just and reasonable to impose that· duty. J54 5.27 The Defendant was said to owe the Plaintiff a duty of care stemming from the 20-year customer relationship, and rc:presentations of expertise. 5.28 The case of Barclays Bank v Quince Care Ltdl 8 l, was cited to support the Plaintiff's argument that financial institutions are required to make reasonable inquiries into investment risks to protect clients from foreseeable harm. 5.29 It was argued that the Defendant's om1ss10n to conduct a due diligence check of this performance of the Sino bond and its market conditions amounted to a breach of duty of care. 5.30 The Plaintiff also argued in reply that the case of Bankers Trust International Plc v PT Dharmala Sakti Sejahteral 9 l established that a bank presenting a product's "upside" and "downside" must do so in a balance manner to avoid liability for misrepresentation. 5 .31 It was argued that the way in which the Sino bond was marketed to the Plaintiff and the omission to disclose issuer specific risks flew in the teeth of that proposition. JSS .. ·- ,- 5.32 It was also argued that the blame worthy conduct _()_f the Defendant also included its manipulation of the Plaintiff's risk profile from "moderately aggressive" to "aggressive" after the ISAF had already been signed. 5.33 The Plaintiff argued that the disclaimers in the documents signed by her do not absolve the Defendant from liability. It has been pointed out that the Plaintiff was instructed by Ms. Shinondo to sign the forms as a formality, without explanation of the contents. 5.34 The Plaintiff reiterated her submission that her case was made out against the Defendant and prayed for all the reliefs as pleaded. ANALYSIS AND FINDINGS 6.1 I have closely studied the material on record and evidence. I have similarly considered the competing final submissions, which I have found very useful and I am grateful to Counsel for them. After a careful consideration, my decision is as set out below. 6.2 I begin with highlighting the profile of the Plaintiff based on her uncontested evidence, as it has a bearing on the analysis to follow. J56 6.3 The evidence shows that the Plaintiff is a 49 year old Zambian lady and highly educated with a bachelor's degree in economics (minor demography) from the University of Zambia and a masters degree in public policy and management from the German University of Potsdam. Additionaly, the Plaintiff is an accomplished professional, currently working as country director for an international non governmental orgranisation called Bridges to Prosperity. 6.4 It is also noteworthy that during her attendance at Court, the Plaintiff exhibited personality traits of being very confident and assertive. The contention of what governed the terms beh•;,-::. en the Plaintiff and Defendant over the Sino bond. 6.5 As trial unfolded, it became apparent that there was no real contention on the contractual documents in existence between the Plaintiff and Defendant, but instead more on their relevance and implication herein. 6.6 The Plaintiff stated in cross examination that her relationship with -· the Defendant was governed by the client investment profile questionnaire ("CIP questionnaire"), investment services action form ("ISAF"), and pre-order form (at p. 44, 24 and 29 of the Defendant's bundle, respectively). J57 6. 7 All the Defendant's witnesses admitted in cross examination that the Plaintiff was a pre-existing customer of the Defendant bank. DW2 spoke about the Defendant's code of conduct and ethics (the "Defendant's code") at p.236 of Plaintiff's bundle as being applicable to all dealings with customers. 6.8 DW3 admitted in cross examination that in addition to the documents from the Defendant; which also included the terms and conditions - investment services (the "terms and conditions") and the indicative term sheet (the "term sheet") (at p.68 and 31 of the Defendant's bundle, respectively); the relationship between it and the Plaintiff was governed by regulatory obligationi · including the Securities . (Conduct of Business) Rules(ll. Further that the Defendant was regulated by the Securities and Exchange Commission ("SEC"). 6. 9 The Plaintiff confirmed in para.18 of her witness statement that she signed inter alia the term sheet (see p.50 - 51 Plai:ntiff's bundle). 6.10 For avoidance of doubt, the term sheet expressly incorporates the terms and conditions into the contractual framework by operation of the customer declaration portion (at p.51 Plaintiff's bundle) which states: J58 "I/We have read and understood the Standard Chartered Bank Customer Terms and Investment Services Account Opening Terms and Conditons and I/ We understand that such terms and conditions would govern my/ our relationship with the Bank in respect of the FIS'. 6 .11 Unlike the terms and conditions, I have not gleaned any contractual document that incorporated the Defendant's code as a binding and enforceable instrument in the contractual framework between Plaintiff and Defendant. I thus treat the Defendant's code as aspirational for the Defendant, which is distinct from an agreed prescriptive document enforceable by the Plaintiff against the Defendant. 6.12 To the above I will add that looking at the words of inducement in paragraph 2 of the statement of claim and admission in the corresponding paragraph of the defence, the Defendant's core services to the Plaintiff as banker-customer import regulation by the Bank of Zambia ("BOZ"). 6.13 There is also the Bankers Association of Zambia Code of Ethics and Banking Practice, 20201 21 (the "BAZ Code"). J59 6.14 The BAZ Code lists the Defendant as a member of BAZ and stipulates that its objective includes to 'define harmonised standards of best banking practice, which member banks of BAZ are expected to follow when dealing with existing and prospective customers.' 6.15 The case of Stanbic Bank Zambia Ltd. v A. S. & C. Enterprises Ltd. & Ors.15 1 (cited by both parties in their submissions) is also authority that the Courts have recognised the BAZ Code as prescriptive in banking business in Zambia. 6.16 Thus, I have no hesistation accepting and finding as I hereby do that the governing regime of the interaction between the Plaintiff and Defendant c,ver the Sino bond included: 6.16.1 the CIP questionnaire; 6.16.2 the ISAF; 6.16.3 the pre-order form; 6. 16. 4 the term sheet; 6.16.5 the terms and conditions; 6.16.6 the legislative regime superintended by SEC as regulator; 6.16.7 the legislative regime superintended by BOZ as regulator; and 6.16.8 the BAZ code. J60 6.1 7 It is noteworthy that the Securities (Conduct of Business) Rules have inter alia the following prescription over contracts between a licenced security services provider and its customer (rule 16(1)): "Where a licensee provides securities services to a customer on written contractual terms (whether pursuant to rule 15 or otherwise), the agreement shall set out in adequate detail the basis on which those services shall be provided." (Emphasis added) 6.18 Quiet clearly, rule 16(1) recognises that the terms and conditions for provision of securities services are left to freedom of contract. It however imposes a requirement that where the contract is in written form, it must adequately detail those terms and conditions. The contention of the nature of the contractual relationship between the Plaintiff and Defendant in respect of the Sino bond. 6.19 Interestingly enough, the evidence shows that the business card of Mr Chasimpha (given to the Plaintiff) indicated that he was a Senior Investment Advisor (p.l of the Plaintiff's bundle). Now since it is he that introduced the Sino bond option to the Plaintiff, this obviously raises some suspicion that the the Defendant may have played an advisory role. J61 6.20 However, given the findings in the preceding part of this judgment (on freedom of contract recognised by rule 16(1) of the Securities (Conduct of Business) Rules), it is useful to also look to the contractual documents in the quest to discern what type of relationship was configured for the securities services in issue. 6.21 In that regard, the Defendant's own terms and conditions indicated in clause 3.1 that the Defendant may offer advisory services from time to time, which again makes it is possible that the Defendant's role when dealing with products like the Sino bond, could in some instances include investment advice. 6.22 However, from the wording of clause 3.1 of the terms and conditions (at p.68 of the Defendant's bundle), the advisory service had to be activated by a written agreement, which leaves no room for it to be implied: "3. 1 We will provide such services as may be agreed in writing which may consist of non advisory management, occasional advisory or execution-only services as specified in the Customer Information Form, to the terms and conditions and I or such other services as may be specifically agreed in writing between us (the "Services ")" (Emphasis added) J62 6.23 This can be contrasted with clause 4 (at p.68 of the Defendant's bundle) which had a default setting that the Defendant would offer a non-advisory service. Clause 4.1 in particular reads: "We will not provide an advisory service to you in relation to the merits of dealing in one or more investments but will avail you with all the necessary documents, terms and conditions for the investments that will be availed to you without assuming any responsibility for such dealing or investment or any ongoing management or performance of any portfolio or investments of yours. This does not mean that we will not take due care and diligence to ensure that only investment grade investments are availed to you through us." (Emphasis added) and clause 14.2: "If we have agreed to provide you with any advisory service, it is important that you discuss your investment objectives and risk requirement with us, and for your own if your inform us protection, circumstances of objectives change. " (Emphasis added) immediately you must 6.24 The implication is that without a written contract to the contrary, the Defendant's role would (by default) be that of a non-advisory distributor of the Sino bond to the Plaintiff. 6.25 Also noteworthy is the following provision in the CIP questionairre (at p.50 of the Defendant's bundle): J63 "You may not rely on any communication (written or oral) from the bank as advice or as a recommendation in relation to this questionnaire. The bank is not acting as or, advisor and has no fiduciary duty towards you." (1) I HAVE READ, UNDERSTOOD AND ACCEPT THE ABOVE, AND---" (Emphasis added) 6.26 As for which scenario 1s more probable than the other, the circumstances of this case show: 6.26.1 that the evidence has a lot of paper trails between the Plaintiff and Defendant but none of them shows the Defendant giving the Plaintiff professional advice over the Sino bond; 6.26.2 that the Plaintiff testified that she relied sm .the investment advice rendered verbally by Mr Chasimpha at her sister's place. However, the Plaintiff had a series of episodes in her testimony where her demeanour was not convincing and she generally seemed to have a pre-conceived case theory to advance; and to add to that, she did not even call her sister to back-up her version of the discussion; and 6.26.3 that Mr Chasimpha had a different versiori ·:)f the discussion stating that he did not render advice to the Plaintiff and it is noteworthy that his credibility was not shaken in cross examination. J64 6.27 Therefore whilst it is possible that investment advic,e.could have been rendered by the Defendant to the Plaintiff: 6.27. 1 in the absence of a record of such advice; 6.27 .2 in the absence of testimony from another person to back the Plaintiff's story; and 6.27.3 in the face of the Plaintiff being a less cre~fbJe witness than Mr Chasimpha), I find it more probable than not that such advice was not actually rendered by the Defendant to the Plaintiff. 6.28 For the same reasons and for: 6.28.1 lack of a written contract (that outright iy · designated the Defendant as investment adviser to the Plaintiff); 6.28.2 the Plaintiff's acceptance of the terms in the ISAF which also required her to seek independent financial and legal advice in respect of the Sino bond (see p.27 of the Defendant's bundle, bullet point 7); and 6.28.3 the Plaintiff's confirmation through tl1e . ISAF that the decision to invest in the Sino bond was based on her own assessment without reliance on advice from the Defendant (see p .27 of the Defendant's bundle, bullet point 1) , J65 it lends credence to the proposition that, the Defendant's role was infact limited to a non-advisory distributor of the Sino bond on behalf of the issuer (disclosed in the term sheet - at p.5O of the Plaintiff's bundle). So I find. The contention of whether the Plaintiff was ind:,:~r:;ed to transact in the Sino bond by a fraudulent or other misrepresentation by the Defendant. 6.29 In Galaunia Farms Ltd. v National Milling Company Ltd.1 101, the Supreme Court re-affirmed that the burden of proof in a civil case lies with the alleger of a fact . 6.30 I have already made findings about the Plaintiff's Leiievability versus that of Mr Chasimpha over the conflicting versions of the formative discussion they had. 6.31 Further, given the Plaintiff's top tier academic and professional profile, and assertiveness (highlighted earlier), I find it very hard to believe that she would blindly sign-up and invest 0 .r,olossal sum of . .. . ,, - , \' USD2O4,338. 75 without bothering to read, interrogate and understand the enabling contractual documents; or without seeking independent advice . J66 6.32 It makes little sense that someone who is at the helm of an international organisation could be swayed by persons of a much lower level of employment into investing. 6.33 It would, perhaps, have been different if the product was sold to her by the Defendant's managing director, who is her hierachical peer in the corporate ladder. 6.34 This can be contrasted with a scenario where one is dealing with a person employed at a low level, less exposed and of little to no education, compounded with a feeble personality. Such is the category of persons who can be expected to invest without question or assessment of the devil that typically lies in the- detail. 6.35 Instead what is more probable than not is that the Plaintiff decided to take her chances by investing in the Sino bond, and to later play victim when her huge investment began to fail. With that collapses the attempt to establish some form of vitiating factors in respect of the con tr actual underpinings. 6.36 It is no wonder that an instant message thread admitted by the Plaintiff to have been between her and Ms Shinondo (on WhatsApp platform) showed the Plaintiff expressing: "Good morning. The coupon is in. I am a happy investor' (see p.92 of the Defendant's bundle). J67 6.37 My op1n10n 1s also fortified by the following prov1s10ns 1n the contractual documentation, the import of which is that the Plaintiff: (i) confirmed ownership of the decision to invest, and (ii) ruled out being influenced by the Defendant to do so: 6.37.1 term sheet, p.1, para. 3 under the tab:e:,· (at p.50 of the Plaintiff's bundle): "This Term Sheet does not constitute a recommendation to purchase or sell the FIS by the Bank and you are advised to make your own independent judgment with respect to any matter contained herein."; 6.37.2 term sheet, p. l , para. 2 under the table (at p.50 of the Plaintiff's bundle): "This Term Sheet sets out the main features of the abovementioned FIS (?,.r. Jhe purpose of obtaining investor interest. This term sheet does not pruvide all the terms & conditions applicable on the above FIS and should not be considered as an exhaustive description of the security."; 6.37.3 ISAF, p.4, first bullet point (at p.48 of the Plaintiff's bundle): "--understand and agree that all decisions to purchase the securities are my/ our own and are based on my/ our independent assessment of the risk ·'CJ.'ssociated with investing in these instruments, including (without limitation) issuer risk, sovereign risk and price risks. My/ our decision to invest in the securities is in no way reliant on any advice received from the bank or any of its affiliates. II we am/ are also aware that investments in these instruments can be risky as they can be volatile and unpredictable"; and J68 6.37.4 terms and conditions, p.7, clause 27.4 (at p.74 of the Defendant's bundle): "Each of the parties acknowledges and agrees that in entering into this Agreement and the documents referred to in it, it does not rely on and shall have no remedy m respect of any statement, representation, warranty or understanding (whether negligently or innocently made) or any person (whether party to this Agreement or not) other than as expressly set out in this Agreement:'. (Emphasis added on all) 6.38 It has already been alluded to that the Securities (Conduct of Business) Rules in rule 16(1) allow freedom of contract to reign in the relation.ship between provider and consumer of securities services. 6.39 Consequently, on the collective strength of the foregoing, I find that the Plaintiff was not induced to transact in the Sino bond by a fraudulent or other misrepresentation by the Defe.n.d.ant. The contention of whether the Defendant was negligent in performance of its obligations to the Plaintiff over the Sino bond. 6.40 In Zambia Railways Limited v Pauline S. Mundia and Brian Sialumbal 111 the Supreme Court explored the tort of negligence and cited with approval the authorative text of Winfield and Jolowicz as follows - J69 "According to the learned author of Winfieid and Jolowicz on Tort, Tenth Edition, at Page 45, negligence as a tort is a breach of a legal duty to take care, which results in damage, undesired by the defendant, to the plaintiff The ingredients necessary to prove negligence are stated as: (a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of duty; (b) breach of that duty: (c) consequential damage to B. The three ingredients, according to the learned author, cannot always be kept apart in their application as they are simply three different ways of looking at one and the same problem.,, 6.41 The Plaintiff herein has also relied on that authoritative text in its final submissions. 6.42 However, the Plaintiff's case has been woven on the premise that the Defendant was its investment adviser on the Sino bond, which has been found not to be by this Court. It leaves the Plaintiff's proposition under this contention with no factual foundation. 6.43 That said, the Securities (Conduct of Business) · Rules usefully prescribe in/er alia the following statutory duties on the part of a securities services provider (Defendant) in relation to its customers (Plaintiff) - 6.43.1 a duty to ensure that the contractual documents adequately detail the terms and conditions for the seryices (rule 16(1)); J70 6.43.2 a duty to provide the services with reasonable care and skill (rule 17(1)); and 6.43.3 a 3 pronged duty relating to risk, na,mely: (a) that recommending a transaction to a customer is forbidden unless all reasonable steps are taken to enable the customer understand the risk, (b) that there is negative obligation to refrain from misleading a customer about the advantages and disadvantages of a transaction, or (c) that assuring a client of a return on investment is forbidden unless the return is contractually guaranteed (rule 1 l(a)-(c)). 6.44 Perusal of the contractual documents that underpin the relationship between the Plaintiff and Defendant over the Sino bond, shows that they elaborately detail the terms and conditions (no breach of rule 16(1)). 6.45 The Defendant's omission to disclose the Africa Focus FI List memorandum to the Plaintiff (or the information therein) would have constituted a breach if either there was a contractual obligation to disclose, or if the Defendant had recommended that the Plaintiff actually invest in the Sino bond, as opposed to what has been established that the Defendant simply distributed the product (no breach of rule 1 l(a)). J71 6.46 There is also no cogent evidence of the Defendant misleading (let alone advising) the Plaintiff about the advantages and disadvantages of investing in the Sino bond; or of assuring the Plaintiff of a return on the investment. Infact the term sheet expressly stated that a return on the investment was not guaranteed. See seventh para. at p.50 of the Plaintiff's bundle, worded: "In addition to the specific risks stated above, the FIS and/ or the value of the FIS maybe impacted by among other things term to maturity, embedded option values, legal & regulatory Jactors and the general outlook for the issuer and related industry. The value of the FIS may rise and fall and you may not always get back the original investment. No guarantee is given by the Bank, express or implied, that invested." investors will receive back any amount (Emphasis added) tax 1egime, 6.47 Thus there is no breach established of rule 1 l(b) and (c) of the Securities (Conduct of Business) Rules. 6.48 There is also no contractual provision which cast an obligation on the Defendant (in a non-advisory role) to inquire into the status of the Sino bond, review performance, identify risks peculiar to it (over and above the generic and inherent risks for fixed income securities ("FIS")), and to appraise the Plaintiff before she invested (no breach of rule 17(1)). J72 6.49 All of this coupled with the Plaintiff's ownership of the decision to invest (discussed earlier in this judgment) leaves rn f to conclude on a balance of probabilities, that no negligence (and no breach of statutory duty) has been proven in the performance of the Defendant's obligations to the Plaintiff over the Sino bond. 6.50 For avoidance of doubt, this Court has gleaned from the Plaintiff's case presentation that there was a decision by SEC in her favour upon complaint against the Defendant. However, there is no background material that has been shared in respect of the parallel proceedings before SEC for those proceedings to have been safely and soundly factored in determination of this case which instead turns on inter alia the evidence actually adduced. It is noteworthy too that the proceedings before the SEC were, it appea r s , a regulatory action whereas before this Court is a civil action founded in contract, tort and statutory duty. Again this made it unsafe and unsound to accept the Plaintiff's invitation to conclude that wrongdoing established before SEC should have the domino effect of wrongdoing established before this Court. J73 The contention of whether the Plaintiff has suffered any injury over the Sino bond for which the Defendant ought to atone. 6.51 The evidence converges on the point that the Sino bond is in default and had to be restructured, which obviously places the Plaintiff's entire investment in jeopardy. 6.52 What is instead in issue is whether the Defendant should be the one to atone for that loss. 6.53 Perusal of the contractual documents reveals that they are replete with provisions which by their wording are deliberately tailored to exclude or limit liability on the part of the Defendant. They include: 6.53.1 the ISAF, p.4, sixth bullet point (at p.48 Plaintiff's bundle): "---agree and acknowledge that the value of the securities (as defined in the Terms and Conditions) may appreciate and depreciate over time and I/ We instruct SCBZ to apply to the issuer(s) of the security(ies) on my/ our behalf in accordance with the terms of SCBZS (investment services. This is a risk I/ We am/ are prepared to accept. SCBZ shall have no liability whatsoever to me/ us for any losses I/ We may suffer as a result of the performance of the securities (as ... d e.fined m the investment service terms and conditions) and also l/ We instruct the bank to reinvest all the mutual fund dividends declared by the issuers(s) of the security(ies) that do not distribute dividends"; and J74 6.53.2 the terms and conditions, clause 14.7 (at p'.71 Defendant's bundle): "Notwithstanding the receipt by you from us of any information and I or materials relating to a security, we will not be responsible for any loss or damage that you may incur as a consequence of investing in a security". 6.54 However, the Securities (Conduct of Business) Rules have some consumer protection safeguards against exclusion of liability / limitation exclusion clauses. Rule 17 in particular prescribes: 17. (1) licensee shall not, in any written communication or agreement, seek to exclude or restrict: (a) any duty or liability to a customer which he has or any subsidiary legislation under the Act made thereunder; (b) any other duty to act with ~kill, care and in diligence that is owed to connection with the provision to him of securities services; and customer a (c) any liability owed to a customer for failure to exercise the degree of skill, care and diligence that may reasonably be expected of him in the provision of securities services. (2) A purported exclusion or restriction prohibited by this rule shall be void and of no effect. (Emphasis added) 6.55 Thus, the exclusion clauses in the contractual framework between the parties cannot shield the Defendant from liability for negligence and / or breach of statutory duty if such infractions were established. J75 6.56 However, this Court has in the preceding parts of the judgment ruled out, misrepresentation, negligence and breach of statutory duty on the part of the Defendant. 6.57 For avoidance of doubt, if breach of statutory duty or negligence had been established against the Defendant, the exclusion clauses would ;, t have been void by operation of rule 17 of the Securities (Conduct of Business) Rules. 6.58 That said, the almost blanketwide freedom of contract allowed by the Securities (Conduct of Business) Rules, coupled with the lope sided contractual terms fortified by exclusion clauses, allowed the Defendant to lawfully do the bare minimum over the Sino bond instead of the very best for the Plaintiff. 6.59 In Finance Bank Zambia Ltd. & Anr. v Simataa Simataal 12l Malila CJ, then as JS) guided that a core principle of English law applicable to Zambia is the need to preserve the value and sanctity of contracts. He went on to echo the Supreme Court's ·· ·,.:.-11.dorsement of jurisprude~ce canvassing the point that contracts freely and voluntarily entered into shall be held sacred and enforced by the Courts. J76 (' 6.60 Accordingly, the Plaintiff cannot (through this suit) be allowed to resile from her bargain reduced into writing in form of the contractual documents with the Defendant. Instead, she must be taken to be bound by the agreed terms and this Court is duty bound to honour them including the exclusion clauses . . 6.61 Consequently, there is no basis for a finding that the Defendant must atone for the harm suffered by the Plaintiff following the default that has plagued the Sino bond. 6.62 The situation would have been different if the Defendant's code had contractual force. I say so because some of the aspirations embedded ... , . in the Defendant's code suggest that it internally held itself to a higher standard than just doing the bare minimum for its customers. 6.63 The aspirations were rightly flagged by the Plaintiff's counsel in cross examination of the Defendant's witnesses. From my perusal of the Defendant's code, some of the ones which struck me include: 6.63.1 "We believe that clients are at the heart of our business, and, they trust us to do the right thing. We do this by proactively identifying their needs, market trends, regulatory expectations, and opportunities for improvement . so that we can effectively meet our client's obiectives."(see p .248 of the Plaintiff's bundle); J77 6.63.2 "Putting clients first by offering fair value,enabling informed decisions , promoting responsibility, and protecting them from exploitation" (see p.273 of th_e Plaintiff's bundle); and 6.63.3 ((We all contribute to creating effectL)e markets: an environment where our clients can confidently engage in transactions in a predictable, secure and fair manner. Doing so is core to the ongoing success of our clients, our communities and our Bank." (see p.282 of the Plaintiff's bundle). 6.64 I am quick to opine that while the Defendant's ~cnduct has not breached the statutory and contractual prescriptions, it nonetheless falls short of the aspirations in the Defendant's code. This is evident from: 6.64.1 the Defendant's mechanical acceptance of the instruction (from SCB Group) to roll out the Sino bond (as a product available on the secondary market) without interrogating its " •'·, . status, performance since issuance, relevant market conditions. The situation is different for a first issuance because inter alia the rating is current, unlike the Sino bond which may have been rated Baa3 at issuance in 2019, but cirumstances over time may erode that; and J78 6.64.2 the Defendant's knowledge of investment risks peculiar to the Sino bond (as set out in the Africa Focus FI List memorandum), but electing to treat · it as an internal document instead of sharing it with the Plaintiff prior to her signing up for the Sino bond. 6.65 The Defendant's code cannot simply be a shiny object that helps to woo customers to do business with the Defendant, through the favourable optics it projects of being a bank with structured systems. Instead it must be taken seriously as an inflexible standard to be met by the Defendant in all its dealings with customers. .. . 6.66 It follows that whilst falling below the radar of the substantive civil liability in this action, such deplorable conduct on the part of the Defendant (measured against the Defendant's code) may very well be cause for stern regulatory action against the Defendant. 6.67 It will also have a bearing on the costs order in this action. 6.68 Perhaps this case has exposed serious cause for revision of the Securities (Conduct of Business) Rules in atleast the following ways to make them more relevant and responsive to the evolved needs of present day Zambia and align it with our modern Securities Actl 11 - J79 6.68.1 replacing the somewhat unbridled freedom of contract under rule 16(1) with a prescription of certain minimum content / clauses that incorporate present day consumer protection needs; 6.68.2 prescribing obligations for service providers of bonds on the secondary market to factor the possibility of a material change in circumstances from date of issuance, which change the service provider would be better placed to discover than the customers; and 6.68.3 fortifying the rules with a code of cond,...:; :L based on the experience and lessons learnt since promulgation of the rules more than 3 decades ago. CONCLUSION AND ORDERS 7.1 The Plaintiff has failed to prove that the Defendant was in breach of statutory duty, or otherwise liable in contract or t c'.i: c for the service provided to her over the Sino bond. 7.2 Consequently, the Plaintiff's action against the Defendant fails and the substantive claims are hereby dismissed. JSO . ; . ~.~: .... ·'· 7.3 Turning now to the issue of costs. They are a matter of discretion for the Court under Order 40 Rule 6 of the High Court Rules( 2 1, in Cap. 27. Further, in terms of exercise of that discretion, I heed the Supreme Court'3 judgment in A/rope Zambia Limited v Anthony Chate & Ors(l41. 7.4 The guidance from Wood, JS in the said authority was that a successful party should not normally be deprived of his costs unless there is something in the nature of the claim or in tne conduct of the party which makes it improper for him to be awarded costs. 7.5 I have in this judgment found that there was no infraction by the Defendant whether under statute, in contract or tort. However, I did find that the Defendant's conduct fell short of its internal code of conduct and ethics which is (in some respects) mQ:[A. stringent than the dictates of the current law. 7.6 I deem that event as sufficient to condemn the Defendant to bear the Plaintiff's costs of and occasioned by this action. So it shall be, to be taxed in default of agreement. K. CHENDA J81