Clement Kasonde v Stanbic Bank Zambia (2020/HPC/0609) (14 July 2025) – ZambiaLII

---- IN THE HIGH COURT FOR ZAMBIA 2020/HPC/0609 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Commercial Division) BETWEEN: CLEMENT KASONDE PLAINTIFF AND STA NBIC BANK ZAMBIA DEFENDANT ./ Before Lady Justice B.G. Shonga For the Plaintiff: Mr. K. Mambwe, Messrs. Ferd Jere & Co. / For the Defendant: Mr. S. Nalumino & Ms. N. Mwila., Messrs. Simeza Sangwa Associates JUDGMENT Cases Referred to: 1. Zambia Railways Limited V Pauline S Mundia (2008) 1 Z.R 172 (SC). 2. Khalid Mohamed v Attorney General (1982) Z.R. 49 (SC). 3. Costa I. Tembo v. Hybrid Poultry Farm (Z) Limited, Appeal No. 66/2001 (SC). 4. Masauso Zulu v Avondale Housing Project (1981) Z.R. 172 (SC). 5. Mwansa v. Zambian Breweries PLC Appeal No. 153/2014 (SC). 6. Ginty v Belmont Building Supplies Ltd, {1959] 1 All ER 414. 7. Zambia Consolidated Copper Mines Investments Holding Plc v Woodgate Holdings Limited, (2011) Vol. 3 Z.R. 110 (SC). 8. Joachimson v Swiss Bank Corporation, {1921] 3 KB 110. 9. Barclays Bank Ltd v. W J Simms Son & Cooke (Southern) Ltd {1979] 3 All ER 522. Legislation and Other Material Referred To: 1. Competition and Consumer Protection Act, 2010. Pa11 J2 of JlS 1.0 INTRODUCTION 1. l Thi cas involv a claim by Lhe plain iff, Cl men Kasondc, againsl th de~ ndanl, Stanbic Zambia Limi cd, for a refund of K140,000.00 all g dly lo L due Lo the def ndant's n 'glig nee in processing a recall of funds transferred from his account pursuant Lo his instructions. 1.2 The plaintiffs claim against the defendant hinges on the alleged delay in acting on his instruction to slop the transaction. 2.0 SUMMARY OF THE PLAINTIFF'CASE 2.1 The plaintiff is a customer of the defendant bank, holding an account al the Kabwe Branch. On l 7Lh July 2020, the plaintiff instructed the defendant Lo transfer K140,000.00 Lo a recipient in South Africa. Later that day, the plaintiff issued a counter instruction to stop the transfer, suspecting fraud on the part of the recipient. 2.2 The plaintiff claims that the defendant breached its duty of care by failing to promptly act on the counter-instruction, resulting in the loss of Kl40,000.00. 2.3 The plaintiff seeks a refund of the lost amount; damages for breach of duty of care; interest; costs; and any other relief deemed fit by the court. 3.0 SUMMARY OF THE DEFENCE 3.1 The defendant admits that the plaintiff is its customer and holds an account at the Kabwe Branch. The defendant also admits receiving instructions from the plaintiff to transfer funds to a recipient in South Africa, and later receiving a counter instruction to halt the transaction. However, the defendant asserts that it had already processed the transfer and remitted the funds to the recipient bank before receiving the plaintiffs counter instruction to halt the transaction. PaJe J3 of J15 3.2 The defendant denies any negligence and asse lha i toox prompt and diligent steps to recall the fund ail er rec:civin c counter-instruction. The defendant argue instruction to stop the transaction came too la e a had alread been transferred, and therefore, the plaintiff h cause of action against the defendant. 3.3 Ultimate! ,, the defendant disputes the plaintiff euuuCJw the reliefs claimed, including the refund of · ,000.00, damages for breach of duty of care, in ere and co 4.0 THE PLAINTIFF'S CASE 4.1 The plaintiff relied on hi own testi.mon ·, prese.i1te~ witness statement. He testified that on 16th J l to transfer ZAR123,420.00 (appro. · ate! z;-,. \ an ABSA account in ou th Africa for a motor , hi 4.2 On 17th July 2020, he confirmed the tran er in tru Relationship Manager, \ ilson fb " , around 0hours. 4.3 After discovering the transaction , a am bank to halt the transfer around 16:53 hou through phone calls and \ hat pp mes513,_ge:s. He \\ by the Relationship Manager and Branch r th t th fund would be blocked and re-credit d to hi Oth July 2020. Ho\) ever, the fund were not re-credited, and th n · lter stated that the transfer had alread bee.11 efii t d. 4.4 During cross-examination, the plaintiff onfinn d th t h " aware that the funds were sub quentl tran rred to th recipient's account at 14:00 hour on the same d ' th t he confirmed the instruction. He also confirm d th t it\\ er th funds had been transferred, at 16:53 hour ,wh n h in tru t d the bank to recall the funds, and the bank tri d to t on thi ~ instruction at 17:04 hours. According to th pl int.HI h \\ ~ Page J4 of JlS as ured by his Relationshi. p Manage r that the funds would be credited back to his account on Mon d ay 20th July 2020. 4.5 Additionally this witness told the court that the defendant informed him' that they had engaged ABSA m. S ou th Africa to help halt the transfer, and ABSA was wru· t·m g 1r or comm unication from their client. 4.6 At this point, I note that the plaintiffs responses m· di' ca te that he acknowledges the defendant,s acti. ons m· proce ssing the transfer and attempting to recall the funds, but di· sputes the b an k's assertion that the funds could not be recovered in time. 4.7 During his reexamination, the plaintiff clarified that he gave instructions to the bank to proceed with the transfer between 12:30-13:00 hours on 17th July 2020. He later saw the amount transferred from his account to the ABSA account at 14:02 hours. However, he doesn't believe the recipient received the money instantly, as international transfers made on a Friday afternoon would not typically be processed that quickly. 4.8 Regarding the recall of funds, the plaintiff insisted that the Mr. Mbewe assured him the money was in a suspense account and the recall process had started. He was told the funds would be re-credited back to his account by Monday. The plaintiff noted a discrepancy between this assurance and the bank's later statement that they engaged ABSA to help with the recall, suggesting the bank's communication was inconsistent. 4.9 The plaintiff submits that I must determine four key issues: i. Whether the defendant owed the plaintiff a duty of care; 11. Whether the defendant breached the duty of care owed to the plaintiff; iii. Whether the plaintiff is entitled to damages for breach of duty of care; and iv. Whether the plaintiff is entitled to the reliefs sought in the statement of claim. Page JS of JlS 4.10 Regarding lhe first two issues, the plaintiff argues that the defendant, as a service provider, owed a duty of care to the plaintiff, its customer, lo provide banking services with reasonable care and skill, as imposed by the Competition and Consumer Protection Act, 2010. The plaintiff contends that the defendant breached this duty by failing to aptly communicate with the plaintiff regarding the withdrawal of funds and by not providing accurate information about the status of the transaction. 4.11 According to the plaintiff, the defendant's claim that it communicated to the plaintiff that funds had been withdrawn before reversal is not supported by evidence. Further, that the defendant's communication with the plaintiff was misleading, leading the plaintiff to believe that the funds were being held in a suspense account and would be recalled, when in fact the funds had already been withdrawn. 4.12 The plaintiff submits that he has discharged his burden of proof in establishing his claims against the defendant. Citing seminal cases, including Zambia Railways Limited v. Pauline S Mundia1 and Khalid Mohamed v. The Attorney-General2, the plaintiff emphasizes that the standard of proof in civil matters is on a balance of probabilities. 4.13 With respect to his claim for costs, the plaintiff relies on the case of Costa I. Tembo v. Hybrid Poultry Farm (ZJ Limited3 for the general rule that costs should follow the event. 5.0 THE DEFENDANT'S CASE 5.1 The defendant called three witnesses, including Mr. Wilson Mbewe, the plaintiffs Relationship Manager. 1 (2008) Vol. 1 Z.R. 172 (SC) 2 (1982) Z.R 49 (SC) • Appeal No. 66/2001 Page JG of JlS t n 16th July 2020, 5.2 According lo Mr. Mbewe's witness statemen , 0 123 420 00 the plaintiff instructed the bank to transfer ZAR • · to S. · s th Africa The plaintiff Ngema's account at Absa Ban k m ou · th initially requested that the transfer be held pending fur er th confirmation but later confirmed the transaction on 17 July ' 2020. 5.3 After the transfer was processed, the plaintiff called this witness to request a stop on the transaction, which Mr. Mbewe promptly acted on by sending an email to the International Business Centre (IBC) team. Despite the bank's efforts, the transaction could not be reversed because the beneficiary had already accessed the funds. Since the bank's efforts to recall the funds were unsuccessful, the plaintiff was advised to contact the beneficiary directly. 5.4 Under cross-examination, Mr. Mbewe confirmed his interactions with the plaintiff regarding the bank transfer to South Africa. He acknowledged that he had processed the transfer instruction and had communicated with the plaintiff about the transaction. Mr. Mbewe confirmed that the plaintiff had called him to hold the instruction on Friday 17th July 2020, and that he had immediately written an email to the IBC team to hold the funds pending further instructions from the plaintiff. 5.5 Mr. Mbewe denied advising the plaintiff that the funds would be returned the next day and could not confrrm sending a WhatsApp message stating that the funds were sitting in a suspense account. He insisted that his email to the IBC team was to hold the funds, not recall them, although his witness statement mentioned recalling the funds. Mr. Mbewe explained that the whole process involved holding the funds unW further instructions from the plaintiff. 5.6 This witness confirmed that the Branch Manager, Mr. Paul Nkonde, had a conversation with him on Saturday. Mr. Mbewe ... d Page J7 of JlS hem ntly deni d forgetting to process the instruction to withdra\: the fund . 5.7 I accept that lhe cro s-examination highlighted a potential incon i tency between Mr. Mbewe's witness statement and his oral te timon , parti ularly regarding the language used in his email to the !BC t am. However, Mr. Mbewe convincingly clarified that th , hole proce was a recall that entailed holding the fund if the funds were returned. 5. Paul Nkonde, th Branch Manager, testified that on Saturday, 1 th Jul 2020, he received a phone call from the plaintiff, who informed him about the transaction in question. The plaintiff told him that he had instructed the bank to transfer funds to South frica, but later requested to stop the transaction due to issues with the car dealers. Mr. Nkonde confirmed with the plaintiff that th tran fer had already been processed and that the instruction to recall the transaction would likely be attended to on the next working day, Monday, 20th July 2020. 5. 9 Mr. Nkonde then called Wilson Mbewe, to confirm the situation, and Mr. Mbewe informed him that he had sent an email to the International Business Centre (!BC) team regarding the recall instruction. Further, Mr. Nkonde stated that on Monday, 20th July 2020, the !BC team confirmed receipt of the instruction to recall the transaction and at about 08:52 hours, sent a request to th recipient bank in South Africa to reverse the transaction. On Tuesda , 21st July 2020, the plaintiff called the branch and advi ed that the beneficiary, S. Ngema, had received the funds in outh Africa. 5.10 Under cross-examination, Mr. Nkonde confirmed that Wilson Mbewe did not notify him about the instruction to recall the funds on Friday 17th July 2020. He testified that Mr. Mbewe was not required to notify him directly about the recall instruction, as Mr. Mbewe would typically work with his team leader, Mark Liswaniso. Page JB of JlS e aware of the issue 5.11 Mr. Nkonde confirmed that he on1 Y b ecam 'th' th bank He agreed that from the plaintiff, and not from W1 m e · . all but clarified that the his office is responsible for handling rec s, · · this case Mbewe, recall is initiated by the operat10ns team, m , th th who sent an email to the IBC team on Friday 17 July 2020, wi Mr. Nkonde in copy. Mr. Nkonde maintained that the IBC team sent a swift message to the recipient bank in South Africa on Monday, 20th July 2020, around 08:50 hours, informing them of the recall instruction. He later received feedback from the IBC team that the recipient bank reported that the funds had already been accessed, and therefore, the recall was unsuccessful. Mr. Nkonde confirmed that he followed up with the IBC team via email to get an official response from the receiving bank. 5.12 The last defence witness, Sipo Ndhlovu, is a Team Leader in the IBC unit. He testified that on 17th July 2020, the IBC team processed an instruction to transfer funds to South Africa on behalf of the plaintiff. The transfer was debited from the plaintiffs account and remitted to Absa Bank in South Africa. Later that day, at 17:04 hours, Wilson Mbewe sent an email to the IBC team requesting to withhold the funds, but it was too late as the transfer had already been completed. 5.13 On Monday, 20th July 2020, Mr. Mbewe sent another email to the IBC team requesting a recall of the funds, which the team acted on promptly. A recall message was sent to Absa Bank via SWIFT at 08:52 hours. However, the recipient bank advised that the funds had already been credited to the beneficiary's account and could not be reversed without the beneficiary's authorization. 5.14 On 29th July 2020, the bank received feedback from Absa Bank that the recipient bank had already utilized the funds, and the bank encouraged the plaintiff to contact the beneficiary directly. 5.15 Under cross-examination, Sipo Ndhlovu confirmed that the transaction involved moving funds from a Kwacha account to an international account in Rand. He testified that cross-border Pogo J9 of JlS transaction lik Lh on • in i u lly I"" d II I ' l Lime, Lakin anywh r' from imm dlut • o wi h 11 un hour t r II· t in Lhe b n ficiary's account. 5.16 Ndhlovu xplained Lh t Lh Lran u lion I pro • d hr uvh h r, SWIFT sy tem, which i n • •11d on each bank's network. H confirm cl th U1 • b r1k1 fro11 •11d processes lhe cro -border p ym nt , nd I cl • n o LI r u h the central bank. 5.17 Mr. Ndhlovu le lifi d Lhat h r c •iv d un mull from WJI on Mbewe on Monday, 20th July 2020, requ Lin a r cull of lh funds. The !BC team acted on the in Lruclion and nt r •call message lo Absa Bank via SWIFT. However, th rccipi nL bank advised that they could not honor the reque t without debit authority from their customer, and that the beneficiary had already accessed the funds. 5.18 In re-examination, Mr. Ndhlovu referred the court to page 4 of the plaintiffs bundle of documents as proof of the communication between the defendant and the receiving bank. 5.19 The defendant presents a robust argument, emphasizing that it acted promptly and reasonably in response to the plaintiffs instructions. The key points advanced include that: 1. The defendant fulfilled its duty of care by executing the plaintiffs initial instruction to transfer funds promptly. ii. The plaintiffs subsequent instruction to recall the funds came almost 3 hours after the transfer, and the IBC team had already knocked off for the day. ill. The defendant acted quickly on the recall instruction on the next business day, sending a SWIFT message to ABSA South Africa at 08:40 am on Monday, 20th July 2020. r 5.20 The defendant argues that its actions did not fall below the standard of care required of a bank, citing evidence from the plaintiff's bundle of documents, including an email with a SWIFT Paae J10 of J15 that the defendant took me ag rd rence number. This suggests r a onable steps to effect the recall. . . f l ·m that the damage 5.21 The defendant challenges the plaint.if s cat , . by the defendants suffered was due to assurances given er The defendant Relationship Manager and Branch Ma na g · . . . th' oint was thoroughly argues that the plaintiffs evidence on 1s P . . ti ularly regarding discredited during cross-examination, par c WhatsApp messages that were not delivered and lacked proof of being sent by Mr. Mbewe. 5.22 Atop this, it contended that even if the messages were reliable, they do not contain assurances that could give rise to liability on the part of the defendant. The defendant considers that its actions in executing the recall request were prompt and reasonable, given that the recall instruction was issued 3 hours after the transfer and near the end of the business day. 5.23 The defendant concludes that no breach of duty of care can be attributed to the recall process, and that the plaintiffs argument is contrary to the evidence on record. The defendant emphasizes that it acted reasonably and promptly, despite the challenges posed by the timing of the recall instruction. 5.24 The defendant summarizes its argument, emphasizing that it: a. Discharged its duty of care to the plaintiff. b. Went above and beyond to recover the plaintiffs money. c. Did not breach its duty of care, and therefore, the action for negligence cannot succeed. 5.25 The defendant cites legal authorities, including W. V. Rodgers fed), Winfield and Jolowicz on Tort (l()th Edition, Sweet & Maxwell, 1975 and formative cases such as Wilson Masauso Zulu v Avondale Housing Project Ltd4 and Mwansa v. Zambian Breweries PLC5, to support the argument that the 4 (1981) Z.R. 172 5 Appeal Np 153/2014 Page Jll of JlS plaintiff must prov breach of duty and con equential damage to ucc d in a neglig nee claim. 5.26 Th d r, ndant po 't s t h at the plaintiff has failed to demonstrate I breach of duty an d cau atJ. on, and therefore, their claims ought to fail. The onu is on the plaintiff to prove their case, and the defendant argues that they have not met this burden. - The defendant also argues that the plaintiff is solely responsible 5 27 for hi own lo s. Citing the case of Ginty v Belmont Building Supplies Ltd the defendant submits that the key question is "Whose fault was it?" and in this case, the plaintiffs own fault and negligence led to his loss. 5.28 The defendant highlights that: i. The plaintiff was scammed by S. Ngema, and there is no evidence linking the defendant to the dealings between the plaintiff and S. Ngema. ii. The plaintiffs failure to conduct proper due diligence before transferring the money to S. Ngema's account was the root cause of the loss. iii. The plaintiff cannot benefit from his own wrong and must bear the consequences of his own negligence. 5.29 The defendant submits that the plaintiffs loss was avoidable, and that he could have taken steps to mitigate the damage, such as involving lawyers in South Africa. Therefore, the defendant should not be held responsible for the plaintiff's loss, and the plaintiffs claim for damages should fail. 5.30 The defendant further argues that the plaintiff has failed to prove that he suffered damage or loss due to the alleged scam by S. Ngema. This is because of lack of evidence to prove that the plaintiff' lost the claimed sums to a scarnrner. That is, that no evidence was led to show that the plaintiff did not receive the vehicle or that the money was indeed lost. I (1951) 1 Bl 414 P111 J12 of JlS 5.3 l The de~ ndant observe that the plaintiffs communication with S. Ng ma after the transaction raises questions about the nature of their relationship. Additionally, the defendant suggests that the plaintiffs failure to report the alleged scam to authorities or to provide evidence of investigations creates a lacuna in their case. In this regard, the defendant leans on the case of Zambia Consolidated Copper Mines Investments Holding Plc v Woodgate Holdings Limited7, which guides that a lacuna in evidence should be resolved in favour of the party not responsible for it. The defendant submits that the plaintiffs failure to prove damage or loss should be resolved in favour of the defendant. S.32 In conclusion, the defendant argues that the plaintiff has failed to prove negligence against the defendant, as there is no evidence of breach of duty of care or damages suffered as a result of the defendant's actions. 6.0 DETERMINATION 6.1 After carefully considering the evidence and testimonies presented, I note that the plaintiffs own concessions in cross examination are particularly revealing. 6.2 The plaintiff conceded that he instructed the defendant bank to transfer the funds to S. Ngema's account between 12:30 hours and 13:00 hours on 17th July 2020, and that the money was deducted from his account around 14:02 hours on the same day. 6.3 Crucially, the plaintiff admitted that he instructed the bank to recall the funds around 16:53 hours, more than 2 and a half hours after the transfer had been implemented. Meanwhile, Mr. Mbewe's testimony that he emailed the IBC Team around 17:04, to recall the funds, was collaborated by Mr. Ndhlovu, the IBC Team Leader. This establishes that the Mr. Mbewe acted within 10 minutes of receiving instructions from the plaintiff. 7 (2011) Vol. 3 Z.R 110 (SC) Page J13 of JlS 6.4 th Given at this was a cross-border transaction, the bank's ability to control the funds once they were sent to the recipient bank were clearly limited. The fact that the recipient bank advised that the beneficiary had already accessed the funds further supports the bank's inability to recall the funds. This was also confirmed by the plaintiff, who conceded that the funds were debited from his account at about 14:03 hours. 6.5 I have also reflected upon the plaintiffs allegations of assurances having been made to him by Mr. Mbewe, that the funds were in a suspense account. This testimony was discredited during cross examination, as he conceded that he did not have any evidence of such assurances. Furthermore, the WhatsApp messages allegedly from the relationship manager were forwarded messages and did not show that they were delivered. 6.6 In evaluating the defendant's actions in this case, it is essential to consider the principles established in Joachimson v Swiss Bank Corporation8, which emphasizes a bank's duty to honour its customer's instructions. However, this duty must be balanced with the practical realities of banking operations, particularly in cross-border transactions. This brings me to the testimonies of the defence witnesses. 6. 7 The bank's witnesses appear to have provided a clear explanation of the events, and the complexities of cross-border transactions. They presented a consistent narrative that: i. The plaintiff initially instructed the bank to transfer funds to South Africa, which was processed accordingly. ii. Later, the plaintiff requested to stop the transaction, but it was too late as the funds had already been remitted to the beneficiary account. iii. The bank took prompt action to recall the funds, but the recipient bank advised that the beneficiary had already 1 (1921) 3 KB 110 Page J14 of JlS 1 to reverse the aking it impossib e accessed the funds, m transaction. ~;,.., each other, . · are corrobora ...... g 6.8 The defence witnesses' testunomes . t the . . b k's efforts to ass1s th and I accept that they highlight e an th . . lear to me that e plaintiff in recalling the funds. However, it is c the cooperation of the outcome ultimately depended on beneficiary and the recipient bank. • the plaintiff confirmed 6.9 By his own testimony and concessions, that he instructed the bank to transfer funds to S. Ngema's account and the bank executed this instruction promptly. Later, ' the plaintiff requested the bank to recall the funds, but this instruction was given more than 2 hours after the transfer had been effected, and on a Friday. 6.10 I have also considered the case of Barclays Bank Ltd v. W J Simms Son & Cooke (Southern) Ltd9, which establishes the bank's duty to act promptly and in good faith when receiving a stop order. However, it's essential to note that the present case involves a recall instruction, which is distinct from a stop order. A stop order typically involves an instruction to prevent a payment from being made, whereas a recall instruction involves a request to retrieve funds that have already been transferred. 6.11 While the Barclays case provides guidance on the bank's duties in relation to stop orders, this authority is not directly applicable to the present case due to the fundamental difference between stop orders and recall instructions. In contrast, the principles established in Joachimson, which require the bank to act in accordance with its customer's instructions, are more pertinent to the present case. 6.12 As I see it, the bank's efforts to recall the funds through the IBC on the next working day demonstrate a reasonable and prompt response, consistent with its duty to act in accordance with the 9 (1979] 3 All ER 522 P 8 JlS of JlS pl in Li fr II lru li n iv 1, lh uniqu ir umsLnn s of Lhl ' II ludin lh l in lru Ll n n !•rid y nnd lh • rossbord r n lUt' f Lh lron LI n, I um oLisli d that lh bank l din od r iLh . . 13 In my opini n, lh pl in Li fr on s ions d monslrat Lhnl the b nk act d re on bly nd prompLly in x cuting th instru lion . 6.14 In light of lh vid nee pr s nted, I find that Lhe defendant acted with du h 't in attending to lhe recall in truclion. However, th in truction' Liming, being late in th day, coupled with the fact that the initial remittance had already been successfully proces ed, meant that the outcome depended on factors beyond the defendant's control, namely the beneficiary and the recipient bank. Consequently, the defendant cannot be held liable for the failed outcome. 6. l 5 Having carefully considered the evidence and the and the plaintiffs concessions, I conclude that that the defendant did not breach its duty of care to the plaintiff. The plaintiffs claims of negligence and breach of duty of care are therefore without merit and I hereby dismiss them, with costs. 6.16 In the circumstances, I award costs in favour of the defendant, to be truced in default of agreement. Dated this 14th day of July 2025