Charles Mwenya Bwalya Mwila v National Savings and Credit Bank (2023/HP/1771) (18 December 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2023/HP/1771 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) AND NATIONAL SAVINGS AND CREDIT BANK DEFENDANT Before: The Hon. Mr. Justice Charles Zulu For the Plaintiff Mr. C. Mutambalilo & Mr. B. Hamuletwa of Messrs Bemvi Associates. For the Defendant: Mr. A. Chuni of Equitas Legal Practitioners. JUDGMENT Cases referred to: 1. Kuwait Airways v Iraqi Co. No. 4 and 5 (2002) 2 AC 883. 2. Transco PLC v United Utilities Water PLC [2005] EWHC 2784. 3. OTK Limited v Amanita Zambian (2011) Z.R. Vol. 1 170. 4. Shell and BP Zambia Limited v Conidaris and others ( 1974) Z.R. 281. 5. Compuserve Incorporated v Cyber Promotions, Inc. and Sanford Wallace 962 F. Supp.1015. 6. Attorney General & Others v Masauso Phiri (SCZ Appeal No. 161/2014). 7. Continental Restaurant and Casino Limited v Arida Mercy Chulu (2000) ZR 128. 8. Owen v Liverpool Corporation ( 1938) 4 ALL E.R. 727 at 730. Legislation and other materials referred to: 1. Electronic Communications and Transactions Act No. 4 of 2021. 2. Halsbury's Laws of England, Fourth Edition Volume 12 at paragraph 1135. 3. Merrell, R. Clifton, "Trespass to Chattels in the Age of Internet', (Washington University Law Review 2002, Volume 80). 4. Dane Mcleod, Regulating Damage on The Internet: A Tortious Approach, (Monash University Law Review Vol. 27 No. 201). 1.0 INTRODUCTION 1.1 The Plaintiff, Charles Mwenya Bwalya Mwila, a former employee of the Defendant, the National Savings and Credit Bank (NATSAVE) took out a writ of summons and statement of claim dated October 6, 2023. The Plaintiff sought judgment on the following reliefs: 1. 2 .1 i. an order that the Defendant removes the Plaintiffs credentials as Bank Signatory from the Defendant Company's Correspondent Banks Data Base as a Signatory; ii. damages for the Defendant 's continued trespass on the Plaintiffs personal cell phone due to consistent Banking System Electronic Fund Transfer notifications/messages from 1st July 2023 to the date ofj udgment; iii. damages for inconvenience and mental anguish caused by the Defendant company due to the constant receiving of authorizing messages to the Plaintiffs phone number even when the Plaintiff is no -J2- longer an employee and signatory of the DefendantCompany;and iv. damages for the Defendant's continued holding out that the Plaintiff is still a Bank Signatory for the Defendant Company's Bank Accounts. 1.2 The Defendant entered appearance and defence on October 23, 2023. In its defence, the Defendant averred that the Plaintiff fully consented to the use of his cell phone number for official business of the Bank during the tenure of his employment. It was rejoined that the Plaintiffs credentials were removed from the database soon after his employment was terminated. 1.3 And in his reply to the defence, the Plaintiff stated that he never consented to the Defendant using his credentials after the expiry of his employment with the Bank. 2.0 THE PLAINTIFF'S CASE 2.1 The Plaintiff in his examination-in-chief relied on his witness statement filed on March 5, 2024, and was duly cross examined by the Defendant's Counsel. 2.2 The Plaintiff recounted that he joined the NATSAVE in July 2016, as Treasury Manager. He said he was the Bank's signatory to an account held by the Bank with Indo-Zambia Bank. He explained that his phone number, bearing cell phone number 0971839313 was made part of the authorization system through which authorizing messages were transmitted from the Bank's database to his cell phone account. -J3- 2.3 He said that on June 30, 2023, his contract of employment with the Bank came to an end. And that he handed over all tools and equipment belonging to the Bank. 2.4 He said despite his contract having expired on June 30, 2023, he continued to receive authorization messages from the Defendant relating to his previous role as the Bank's signatory for the said bank account. He said the receipt of authorization messages were at a very large scale. He made reference to screenshots of the said messages exhibited at pages 12-24 of his bundle of documents. The sample reads: 2.4.1 Dear user, Authorization pending for request Fund Transfer Request from Nelly Ngoma. 2.5 He said on August 2, 2023, he wrote to the Chief Financial Officer of the Bank, Mr. Lucas Hara, requesting that his credentials be removed as the Bank's signatory for the said account. He said Mr. Lucas Hara responded, and assured him that the needful would be done. He stated that despite the assurances, he continued to receive authorization messages on his cell phone. 2.6 He stated that in the light of the above, he wrote a letter of demand to the Defendant on September 1, 2023, claiming the sum of Kl, 500,000.00 for trespass on his cell phone, but there was no response from the Defendant. 2. 7 He expressed concern that the Bank's failure to remove his credentials as a Bank signatory may expose him to criminal -J4- liability, if his credentials continued to appear as the Bank's signatory for the said account. 3.0 THE DEFENDANT'S CASE 3.1 The Defendant elected not to call witnesses, but filed written submissions on some points of law to challenge the Plaintiffs case. 4.0 THE PLAINTIFF'S SUBMISSIONS 4.1 It was submitted that the Plaintiffs claim for trespass was tenable. It was argued that, just as a right exists to prevent interference with land rights, a right was in existence in tort to deal with unwarranted interferences with other personal property other than land. 4.2 The case of Kuwait Airways v Iraqi Airways Co.1 was cited, , where it was held: 4.2.1 In general, the basic features of the tort are threefold. Firstly, the defendants conduct was inconsistent with the rights of the owner (or other person entitled to possession). Secondly, the conduct was deliberate and not accidental. Third, the conduct was also extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. 4.3 It was observed that the Bank's conduct of continuing to send authorizing messages to the Plaintiffs cell phone, even after the Plaintiff wrote to be removed from the database was deliberate. It was alleged that the Bank continued with its conduct to stress the Plaintiff. It was noted that, if fraud was committed under -JS- the Plaintiffs active domain, the cnme would bear his credentials. 4 .4 It was argued that there was trespass by the Bank against the Plaintiffs personal property. According to Counsel, the Bank trespassed and even converted the Plaintiffs property and continued to use it by sending messages of high valued bank resources without his consent. That the failure to rectify the anomaly, was deliberate, meant to inflict more stress, mental torture and anguish. 4.5 It was submitted that the Plaintiff was under no obligation to produce medical reports to prove that he suffered mental anguish, pain, stress and disappointment. It was argued that this was unnecessary because, trespass was actionable per se without proving damage, and the case of Transco PLC v United Utilities Water Plc2 was cited. 4.6 It was concluded that mental anguish can never be measured in monetary terms, but the Court was conferred with the discretion to award "handsomely". That the award of damages was necessary to send a message to banks to protect valued public resources entrusted to them. 4.7 I was urged to grant to the Plaintiff the reliefs sought. 5.0 THE DEFENDANT'S SUBMISSIONS 5.1 The Defendant's Counsel cited authorities generally speaking to the burden of proof placed on the Plaintiff. It was observed that the Plaintiff appeared before court with a collection of -JG- screenshot messages from unverified and unconfirmed sources, coupled with a claim for mental anguish. That the attribute of these messages to the Defendant was without proof. 5.2 It was argued that the screenshots displayed at pages 12-24 of the Plaintiffs bundle of documents are without proof: that they were taken from the Plaintiffs cell phone. Section 9(3) of the Electronic Communications and Transactions Act No. 4 of 2021 was vouched, which provides: 5.2.1 9(3) In any legal proceedings, when assessing the evidential weight of a data message, regard shall be had to - (a) .... . (b) ... . (c) the manner in which the originator was identified; and (d) any other relevant factor. 5.3 It was maintained that the Plaintiff had not at the very least shown any substantial evidence to convince the Court that the screenshots in issue were from the Defendant, or indeed they were received on the Plaintiffs phone. It was argued that the verification was by word of mouth. 5.4 It was contended that even assuming that the screenshots messages came from the Defendant, and were sitting on the Plaintiffs handset, the case does not satisfy the threshold for the tort of trespass. 5.5 It was observed that the tort of trespass involves interference with physical possession. That the sending of messages did not interfere with the Plaintiffs physical possession of his phone. -J7- 5.6 And as regard the claim for mental anguish, it was observed that the claim for nervous shock and mental anguish arise from extreme circumstances: where the distress is so severe that no reasonable man could be expected to endure it. It was contended that the text messages could not reasonably have caused any mental anguish to the Plaintiff; evident from the fact that, the Plaintiff never attempted to delete the messages in question. 5.7 I was urged to dismiss the Plaintiffs case. 6.0 DETERMINATION 6 .1 I have carefully analyzed the evidence adduced by the Plaintiff, and the submissions thereof. I am mindful that no evidence was led by the Defendant, nevertheless, the burden of proof remains with the Plaintiff. 6.2 I am satisfied that in July 2016, the Plaintiff was employed by the Defendant as Treasury Manager. The Plaintiff was a signatory to an account held by the Bank with Inda-Zambia Bank. His phone number bearing 0971839313 was made part of the authorization system through which authorization messages were transmitted to his cell phone for his notice and action. 6.3 And it is not in dispute that his contract came to an end on in July 2023. Ordinarily, with the termination of his employment, the Plaintiffs signatory credentials relating to the bank account held by the Defendant with Inda-Zambia Bank, ought to have been decommissioned from the database, immediately after his contract came to an end or, soon thereafter. -J8- 6.4 In support or to corroborate the Plaintiffs assertion that his credentials remained on the system and he continued to receive authorization messages from the Bank up to the time the action was taken out, he relied on what he termed as phone screenshots. It is without doubt that these screenshots constitute data messages as captured by the Electronic Communications and Transactions Act. Section 2 defines a "data message" as follows: 6.4.1 "data message" means data generated, sent, received or stored by electronic, optical or similar means and includes, but is not limited to electronic data interchange (EDI), voice, stored record, electronic mail, mobile communications audio and video recordings. 6.5 The authenticity of these data messages was challenged and discredited. The basis for this challenge was that the source of these messages was unverified and unconfirmed. Indeed, the duty was on the Plaintiff to authenticate the data messages by way of laying a foundation in his witness statement or orally. In OTK Limited v Amanita Zambiana3 the Supreme Court guided as follows: 6.5.1 It is clear from all the authorities cited above, that is a condition precedent that certain conditions should be met before a document is produced. These conditions are akin to laying a foundation, which invariably leads to the authentication of the document. It is also clear that a person in the service of the person or entity -J9- intending to rely on the data message may produce it. 6.6 Notwithstanding, that no objection was made at the time the Plaintiff sought to rely on the data messages, the fact remains that no proper foundation was laid. In the first place, it is not certain whether the screenshots were SMS messages or WhatsApp messages. Secondly, the screen shots do not identify the originator. Therefore, there is little weight of evidential value to be attached to the screenshots. Nevertheless, I find it probable that the Defendant continued to send to the Plaintiff authorization messages, as if he was still the Bank's signatory, despite writing to the Defendant to decommission his credentials from the database. 6. 7 And notwithstanding the discount of the screenshots, I still find it probable that even after the Plaintiffs employment came to an end, his credentials as the Bank's signatory for the account held with Inda-Zambia Bank remained active. The emails dated August 21, 2023, from the Plaintiff to the Defendant, and from the Defendant to the Plaintiff of even date attest to this fact. 6.8 The assertion by the Defendant in its defence that, the messaging of authorization texts was contemporaneously halted with the cessation of the Plaintiffs employment, lacked evidential proof. I wonder how the Defendant expected to be believed and trusted in the absence of evidence. 6. 9 I doubt not that the Plaintiff is entitled to an order directing the Defendant to deactivate the Plaintiffs credentials from its database. This is expedient to bring a closure to the Plaintiffs -JlO- separation from his employer, and for him to peacefully enjoy his retirement from the Bank. 6.10 The Plaintiff also claims damages for trespass. The tort of trespass is generally associated with interference to land, defined to mean: an unlawful entry on land in the possession of another (see Shell & B P Zambia Limited v Conidaris and Others4-). Trespass to chattels is equally recognized in law. The learned authors of Halsbury's Laws of England Fourth Edition Volume 12 at paragraph 1159 assert as follows: 6.10.1 A trespass to chattels is actionable without proof of actual damage, and a plaintiff is at least entitled to nominal damages for any unauthorized direct physical interference with chattels in his possession. 6.11 The Defendant argued that the Plaintiffs claim for trespass was not tenable because, it failed to meet the key requisite to sustain the tort of trespass, which is proof of direct unlawful interference with physical possession of another person's property. 6.12 Undoubtedly, the nature of trespass alleged herein is electronic based, intangible by nature. And when generally pitted against the general definition of trespass, and if emphasis was solely placed on physical interference, the claim herein may appear to have little chance of success. The is because, the Bank never physically interfered with the Plaintiffs handset. However, trespass through the electronic system is real, typically manifest by means of hacking, spam, transmission of computer viruses, and unauthorized access to a computer by another -Jll- person. These types, by analogy assuredly match the definition of trespass to chattels. 6.13 In the digital age, the law on trespass is evolving and a claim for electronic trespass is now sustainable, under the head of trespass to chattels, even without direct physical interference with an electronic device. According to R. Clifton Merrell, in an article dubbed: "Trespass to Chattels in the Age ofintemef', (Washington University Law Review 2002, Volume 80), at page 679, he submits: 6.13.1 Case law over the last five years has significantly broadened the application of trespass to chattels from a tort involving physical contact to a tort involving the ephemeral touching of electrons. Thrifty- Tel, Inc. v. Bezenek laid the groundwork for future application of the doctrine of trespass to chattels even though this case was not in the internet context. 6.14 Another learned author from Australia, Dane Mcleod, in his article titled: Regulating Damage on The Internet: A Tortious Approach, published 1n a journal: Monash University Law Review (Vol. 27 No. 2 01) argues that: torts such as conversion, trespass, and negligence are best suited to remedying property damage on the Internet. 6. 15 While our jurisdiction has a dearth of jurisprudence regarding the subject issue, a persuasive glimpse into other jurisdictions like the United States of America, and common law pundits is cautiously worth of pursuit. It is compelling to cite the landmark case of, Compuserve Incorporated v Cyber Promotions, Inc. and Sanford Wallace5 decided by an , -J12- American Court. The case was said to present novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail adverts to its subscribers. 6.15 In that case, the plaintiff, Compuserve Incorporated, took out an action against the Defendants, Cyber Promotions Inc., and Sanford Wallace, seeking to restrain the defendants from sending large volumes of unsolicited emails advertisements to subscribers, the majority of whom were Compuserve subscribers via Compuserve computer equipment to process and store the unsolicited emails. The Court held: 6.15.1 Where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to the Plaintifjs proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded the Plaintifjs affirmative efforts to protect its computer equipment from such use, Plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property. 6.16 Additionally, the learned author, Mcleod, in his aforementioned publication, considerably inspired by the above case, in making a point that trespass to chattels extend to the Internet, submit as follows: 6.16.1 Trespass to property is a wrongful interference with goods in the possession of another. The interference must be wrongful -J13- and intentional, although actions for reckless and careless interference are possible. .. The defendant's act must be voluntary, intentional or negligent, and must directly occasion the trespass. 6.17 The learned author goes on to say: 6.17.1 Any act that sets in motion an unbroken series of continuing consequences, the last of which ultimately causes contact with the goods of the Plaintiff, will be sufficiently direct. This could adequately encompass actions for damage caused by viruses where the causation is remote. Whilst the interference must be direct and physical; the defendant need not make personal contact with the goods. This addresses the problematic issues of remoteness on the Internet. .. The fact that there is no material damage does not prevent a cause of action. Trespass is actionable per se without proof of damage. This may silence debates based on the intangibility of property. 6.18 It is clear from the above that in a matter involving a well founded claim of electronic or digital trespass, the claim would not fail merely on account that there was no physical interference or control of the physical asset or physical damage done to it by the tortfeasor. This resolve is fortified by the principle that, the claim for trespass, is inherently actionable per se. Indeed, interference may take the form of transmitting a barrage or bombardment of unsolicited messages, with utter contempt to the receiver's repeated appeals to the tortfeasor, to cease the transmission to his electronic gadget. -Jl4- 6.19 In the present case, I find the Plaintiffs claim for trespass contextually tenable. The Plaintiffs contract of employment came to end, but the Bank continued to send and the Plaintiff continued to receive large volumes of electronic messages to his cell phone for authorization, relating to his previous role, as the Bank's signatory. The Plaintiffs repeated humble and retired pleas to the Bank did not soften the Bank's mighty corporate position to honour his pleas. 6.20 The Plaintiffs pleas etched with a sense of patriotism for the Bank to decommission his credentials from the database was not only safe to the Plaintiff, but more beneficial to the Bank in terms of securing the Bank's financial assets. The Defendant's trespass was not only committed on one day or occasion, but continued from the time he left employment on June 30, 2023, up to the time the action was taken out and beyond. The Plaintiff alleged that the Bank's conduct was deliberate. And this testimony was not challenged, since the Defendant elected not to call counter witnesses. 6.21 The interference, intangible in nature, axiomatically turned out to be unlawful after the Bank negligently and willfully failed to heed to the stop order by the Plaintiff. This consequentially caused discomfort to the Plaintiff. The nature of the discomfort was to the extent that the quietness of his retirement was disturbed by the barrage of authorization text messages from his former employer, as if he was still in active service, sent to his phone without his consent. It is for this reason the Plaintiff -JlS- was forthright in his letter of demand; his Counsel reported his grievance as follows: 6.21.1 This is not only continued trespass but also infringing on his rig ht to privacy, use of personal tools and assets. .. This continued trespass by your Banking System has caused pain, anguish, inconvenience, compromised privacy and loss of personal communication. The phone memory gets full within minutes and it becomes unusable. 6.22 Therefore, the willful failure and neglect by the Defendant not to decommission the Plaintiffs credentials from the database, raised the Plaintiffs well founded anxiety and fear that the status quo was potentially prone to being abused for criminal enterprise using his credentials without his knowledge, making him prima Jacie answerable, in the event of a crime being committed under his profile. 6.23 In the age where, a thief can remotely steal more with a computer than through a gun, the want of the duty of care on the part of Bank to honour the Plaintiffs request was concerning. The proposition that the Plaintiff could have easily deleted the messages, did and does not justify the Bank's conduct. 6.24 It is settled that an award of damages must be fair and adequate. The claim of Kl, 500, 000. 00 for trespass is inordinately excessive and unjustified. In an award of general damages, the Supreme Court has enjoined trial courts to apply the principle of moderation (see Attorney General & Others v Masauso Phiri~. Therefore, the amount I reasonably reckon -Jl6- to be a fair solatium to cover general damages for trespass is Thirty Thousand Kwacha (K30, 000.00). 6.25 As regards the claim for inconvenience and mental anguish. In a claim for trespass, inconvenience suffered by a plaintiff is a factor generally taken into account. However, the focus here is with regard to the claim for mental anguish. Contrary to the position taken by the Plaintiffs Counsel that mental anguish is actionable per se. The claim for mental anguish is distinct from trespass, which is actionable per se, albeit the claim for mental anguish may arise from trespass. 6.26 The duty to prove mental anguish is not impossible to attain and ascertain. This was affirmed in the case of Continental Restaurant and Casino Limited v Arida Mercy Chulu7 wherein it was held: 6.26.1 The important point to stress, however, is that in cases of this nature, the basis of awarding damages is to vindicate that injury suffered by the Plaintiff. The money was to be awarded in the instant case not because there was a cockroach in the soup, but on account of the harm or injury done to health, mental or physical of the Plaintiff. .. The Plaintiff has, therefore, a duty to bring credible evidence of illness. The award in the instant case comes to us with a sense of shock as being wrong in principle and on the higher side. We want to take advantage of this case to point out that infuture, nothing will be awarded ifno proper evidence of medical nature is adduced. -J17- 6.27 I should take note that damage and proof of damages relating to mental anguish must be established, the way it is done regarding proof of damages for personal injuries. In Owen v Liverpool Corporation8 Lord MACkinnon advised: , 6.27.1 On the principle, we think that the rig ht to recover damages for mental shock caused by negligence of a defendant is not limited to cases in which apprehension as to human safety is involved. The principle must be that mental or nervous shock, if in fact caused by the Defendant's negligent act, is just as really damage to the sufferer as is a broken limb ... less obvious to the layman, but nowadays equally ascertainable by physician. 6.28 I now turn to the claim itemized under (iv) in the endorsement part of the writ of summons, relating to damages for the Defendant's continued holding out that the Plaintiff was still a Bank's signatory. While I agree that the Plaintiffs credentials continued to appear on the Defendant's authorization system, as a signatory; the mere neglect/failure to remove the Plaintiffs particulars as a signatory, does not mean that the Bank held him out as it's signatory, to deceive third parties. In fact, the Plaintiff, did not even perform any authorization functions in the said period. 7.0 CONCLUSION 7.1 In the light of the foregoing, the claim for an order to remove or to decommission the Plaintiffs credentials from the Defendant's electronic authorization mandate succeeds, and the same ought to be effected within 14 days from the date of this judgment. The claim for damages for trespass to the Plaintiffs phone succeeds -J18- in the sum of K30, 000.00 with interest. The applicable interest is the average short term deposit rate from the date the writ of summons was issued to date of judgment, and thereafter at the commercial lending rate until final payment. 7.2 The claims for inconvenience and mental anguish and for allegedly holding out the Plaintiff as a signatory for the Defendant fail, and stand dismissed. 7.3 Costs for the Plaintiff to be taxed in default of agreement. 7.4 Leave to appeal granted. DATED THIS 18TH DAY OF DECEMBER, 2025 --- ................................................................ THE HON. MR. JUSTICE CHARLES ZULU -J19-