(Civil Jurisdict io n) 2 4 FEB 2U25

REGISTR'r' 2
BETWEEN:

MANSFIELD SCOTT INVESTMENTS LIMITED

--
067,

APPLICANT

AND

BARCLAYS BANK ZAMBIA PLC RESPONDENT

Coram: Siavwapa JP, Chishimba and Patel, JJA

On 1gth & 24 th February 2025

Fo r the Ap plicant: Mr. L. M wam ba & M r. M. Chu ngu

Messrs. M wamba & M ilan Advocates

For the Respo nde nt: Mr. R. Mwa nza

Messrs. Ro bert & Partners

RULING

Patel, JA, delivered the Ruling of the Court

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Cases Referred to:

1. KV Wheels and Construction Limited and Others v Development Bank of

Zambia- SCZ Appeal No. 123 of 2016

2. Bidvest Food Zambia Limited, Chipkins Bakery Suppl ies (Pty) Limited , Crown

National (Pty) Limited, Bidfood Ingredients (Pty) Limited, Bidvest Group

Limited v. CAA Import and Export Limited- SCZ Appeal No. 56 of 2017.

3. Hermanus Philipus Steyn v Giovanni Ruscone Sup Ct Appl No. 4 of 2012

4. KV Wheels Constructio n Lim ited v Invest Trust Bank Pie - SCZ/8/29/2021

5. Kekelwa Samuel Kongwa vs Meamui Georgina Kongwa - SCZ/8/05/ 2019 .

6. Zlatan Zlatakkoauronotivic v Stanbic Bank Limited - SCZ/08/14/ 2020

7. John Kawadilu Kalenga v Mususu Mambo Kalenga -Caz Application No.35 of

2019

8. Philip v Barclays Bank Pie (2022) Q.B. 578

9. Barclays Bank Pie v Quincecare Limited & Another (1992) ALL ER 363

10 . Shreeji Investments Limited v ZANACO Pie -SCZ Appeal No. 143/20009

11. First National Bank v Libyan Investments Limited - CAZ Appeal No. 64 of

2020

12. Barclays Bank Pie vs Jeremiah Njovu & Others- SCZ/8/21, SCZ [2019]

Rules and Legislation Referred to:

1. The Court of Appeal Act No.7 of 2016

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1.0 INTRODUCTION

1.1 This is the Ruling in respect of a Notice of Motion for leave to appeal the

Judgment of this Court dated 13 th June 2024 to the Supreme Court of

Zambia pursuant to Section 13 (3) (a) and (c) of the Court of Appeal Act

2016 1 •

1.2 The Applicant commenced this matter in the High Court against the

Respondent by Writ of Summons and statement of claim seeking th e

following reliefs:

1) Special damages for economic loss due to the Respondent's negligent

misrepresentation and its failure to carry out its fiduciary duties owed
to the Appellant in its capacity as the Appellant's banker;

2} In the alternative, a declaration that the Respondent assumed the

role of an escrow agent to the Appellant and proceeded to act
outside its escrow mandate and in breach of its fiduciary duties as an
escrow agent, causing the Appellant financial loss, thereby making it
liable for special damages for economic loss;

3} General and exemplary damages for negligence;

4) And interest and costs.

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1.3 The lower Court considered the evidence on record and found that the new

signatories to its bank account, were nominated by th e Applicant itself. The

lower Court further concluded that the Applicant had not establish ed its

case on a balance of probabilities and dismissed all its cla ims with costs.

1.4 Dissatisfied, the Applicant subseque ntly appealed to this Court, and we

rendered our Judgment on 13 th June 2024, (now the subject of leave to

appeal) by which we dismissed the appeal with costs to the Respondent.

1.5 The Applicant has moved this Court seeking leave to appeal to the Supreme

Court of Zambia on four (4) grounds as stated in the intended

Memorandum of Appeal.

2.0 NOTICE OF MOTION

2.1 The Motion was filed on 26 th June 2024 with an affidavit in support sworn

by one Titus Nyirongo, in his capacity as Accountant in the Applicant

company.

2.2 The deponent has averred that following the Judgment of this Court, a copy

of which w as exhibited and marked 'TNl', the Applicant is desirous of

appealing to the Supreme Court and exhibited and marked 'TN2' and 'TN3'

are cop ies of the proposed Notice of Appeal and Memorandum of Appeal

respectively.

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2.3 The intended grounds of appea l are as follows :

Ground 1

The lower Court erred in law and fact by holding that the Respondent was
not negligent when it honoured the instructions issued by the authorized
signatories to the account to pay the various payees until it was put on
notice.

Ground 2

The lower Court erred in law and in fact when it held that where a Bank
receives instructions in accordance with the mandate, the duty of the bank
is to simply carry out, the instructions promptly and that the bank is not
concerned with the risks of the paying instructions.

Ground 3

The Court of Appeal erred in law and in fact by holding in paragraph 8.31 of
the Judgment that the Respondent had no reasonable grounds of believing
that the payments were being fraudulently made by the authorized
signatories.

Ground 4

The lower Court erred in law and in fact by holding that the Bank was on
firm ground when it declined to give viewing rights to the appellant or bank
statements which are only availed to authorized signatories.

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2. 4 The depon ent avers, that on the advice of Coun se l, the intended appeal

raises points of la w of public importance that transcen d the parties to t his

action.

2.5 It is further deposed that the ext en t of a Bank's duty in cases such as t he

o ne in casu, w here there is misappropriation of funds by an authorized

signatory of a customer, is o ne w hose determination wi ll inte rest every

Bank and all its cu stomers, particu larly those that appoint signatories to

oversee t heir accounts.

2.6 The deponent has furth er averred th at th e issue as to whether a customer

ca n have access to its bank statements and internet banking, even where it

has appointed signatories, also has a public signif ica nce as Banks and

Customers alike will benefit from the gu ida nce of the Supreme Court.

2.7 The Applicant also placed reliance on its ske leton arguments filed in

suppo rt of the Notice of Motion. We have fully interrogated these and wi ll

reference them where appropriate in th e analysis section of our Ruling.

2.8 The App licant also fil ed its skeleton argu ments in reply dated 11 th Feb ru ary

2025 whic h we have fully considered and w hich in fact reiterate or lend

force to its argu ments in support of t he Motion.

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 3.0 THE RESPONDENT'S OPPOSITION

3.1 The Respondent opposed the Motion and pla ced reliance on its affidavit

and skeleton arguments filed on 2nd December 2025. In similar manner, w e

have interrogated these and will reference them where appropriate in t he

analysis section of our Ruling.

3.2 The main issues raised by the Respondent in opposing the Motion for leave

to appeal to the Supreme Court are that the proposed appeal does not

raise a point of la w of public importance, nor does it have prosp ects of

success.

4.0 THE HEARING OF THE NOTICE OF MOTION

4.1 At the hearing of the Motion, Counsel for th e Applicant placed reliance on

its heads of argument in support and those filed in reply. It was argued that

there had been negligence on th e part of the Respondent, more so that it

had been made aware of the business transaction entered into by the

Appellant. It was the combined submissio n that the proposed appeal had

raised important points of law of public importance which deserve to be

pronounced upon by the Supreme Court.

4.2 Counsel Mwanza placed entire reliance on its opposing process and

submitted that the applicant had not met the threshold as prescrib ed and

was not deserving of the grant of leave to appeal.

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5.0 CONSIDERATION OF THE NOTICE OF MOTION

5.1 We have careful ly considered the application together wit h the entire

record of motion and the intended grounds of appeal. We have also

considered the affidavits and skeleton arguments which have been referred

to in paragraphs 2 and 3 above .

5.2 The ma in issue for determ ination is, as we see it, straight forward. Has th e

Applicant demonstrated that leave to appeal to the Supreme Court ought

t o be gran t ed based on th e proposed grounds of appeal set o ut in

paragraph 2 above as read with section 13 {3) (a) (c) and (d) of th e Cou rt of

Appeal Act 1 . The Applicant contends t hat the int ended appea l has ra ised

points of law of public importance which transcend the interest of the

Parties to the actio n, that there are reasonable prospects of success and

that it is in the interest of justice, that th e leave sought is granted.

5.3 It is trite that leave to appeal to th e Supreme Cou rt may only be granted if

this Court is satisfied that at least one of the cond it ions in Section 13 of the

Act is satisfied . Section 13 (3) of the Court of Appea l Act No. 7 of 2016 1

provides as follows: -

"{3} The Court may grant leave to appeal where it considers that-

(a) the appeal raises a point of law of public importance;

(b) it is desirable and in the public interest that an appeal by th e

person convicted should be determined by the Supreme Court;

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 (c) the appeal would have a reasonable prospect of success; or

(d} there is some other compelling reason fo r the appeal to be heard."

5.4 The cru cial question before us is w heth er th e Applicant s have met the

threshold in Section 13 (3) of the Court of Appeal Act 1 . We will now

exa min e t his M oti on to determ ine w hether it has met th e est ab lished

bench m ar ks.

Issue of Public Importance

5.5 We are alive to the threshold required to d ischarge th e argument that the

appeal has raise d an issue of pu bli c impo rtance. We place prem ium on the

decision of t he Supreme Cou rt in t he case of KV Wheels and Construction

Limited and Others v Development Bank of Zambia 1 in which the Apex

Court, cited w ith app roval, t he ca se of Bidvest and Four Others v CAA

Import and Export Limited 2 • Thi s decis ion has est abli shed th e m ini mum

t hreshold t o be met by a litiga nt, inte nding to seek leave t o appea l t o t he

Supreme Court of Zam bia, comm only referred to as t he Bidvest case.

5.6 In t he KV Wheels 1 case, th e Supre me Co urt stated as fo llows:

"In the Bidvest case, we explained quite clearly that for a point of
public im portance to provide a basis for granting leave to appeal, it
ought to be a point of law- an arguable point of law. We stated as
fo llows: Two fin al points on section 13 (3) (a). First, it is always critical
to bear in mind that under section 13 (3) (1), the three different facets

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 of the qualifying criteria for leave to be granted must be satisfied.
These are: (i) a point of law; (ii) of public importance; and (iii) raised
in the appeal.
We went further to explain in that case that an appeal anchored on
findings of fact alone, even if it is demonstrated that those findings
were perverse or not borne out of evidence, does not qualify as
raising a 'point of law' in the first instance. An ordinary finding of fact
ipso facto fails the test on that account alone. "

5.7 In our Judgment, we addressed the same cardinal issues, which the

Appellant wants the Supreme Court to pronounce itself on. It is clear from

the perusal of the intended Memorandum of Appea l, that the intended

appeal is grounded on findings of fact which in terms of the KV Wheels 1

case does not qualify as raising a 'poin t of law.'

5 .8 It is notoriously obvious th at to cast the net on an issue of public

importance, it must affect a wider audience and not just the litigants. The

Sup reme Court of Kenya, in the case of Hermanus Philipus Steyn v

Giovanni Ruscone3, gave guidance on the meaning of a matter of general

public importance. It is noteworthy that the Kenyan Supreme Court clarified

that for a matter to be one of general public importance, the matter must

be of wider public significance, it should be based on uncertain points of

law which must transcend beyond the rights or interests of the parties to

the dispute. (emphasis ours.)

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5 .9 In our jurisdiction, the Apex Court has clarified the meaning of the phrase

"a matter of general public importance' in t he case of KV Wheels

Construction Limited v Invest Trust Bank Plc4 in the following terms :

"{1} The importance of the matter must be public in nature and must
transcend the circumstances of the particular case so as to have a
more general significance.
{2} Where the matter involves a point of law and that it is for the
common good that such law should be clarified so as to enable courts
to administer the law, not only the case at hand, but other cases in
future."

5.10 Similar sentiments we re expressed by a single Judge of the Supreme Court

in the case of Kekelwa Samuel Kongwa v Meamui Georgina Kangwa 5 when

the Judge stated :

11
.. .for a legal question to be treated as a point of law of public
importance, it must have a public or general character rather than
one that merely affects the private rights or interests of the parties to
a particular dispute. The legal point in issue should relate to a
widespread concern in the body politic the determination of which
should naturally have effect beyond the private interests of the
parties to the appeal. "

5.11 In a recent decision, in the case of Zlatan Zlatakkoauronotivic v Stanbic

Bank Limited 6 the Supreme Court st ated:

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 "Therefore, for a legal question to be treated as a point of law of
public importance it must have a public or general character rather
than one that merely affects the private rights or interest of the
parties to a particular dispute; and it must be raised in the appeal."

5.12 In our decision rendered in the case of John Kawabilu Kalenga v Mususu

Mambo Kalenga 7, we rejected the argument that the issue raised grounds

of points of law of public importance. We stated in that case that the

argument did not meet the threshold stipulated in section 13 (3) (a), (c) or

(d}1.

5.13 In casu, we direct our mind to the intended grounds of appeal (cited at
paragraph 2 above). Firstly, it is common cause that reference should not

be made to 'the lower court" as it is the Judgment of this Court, that is

under reference in the Motion. The Applicant refers to the lower Court in
grounds 1, 2 and 4. It would therefore be correct for us to take the

intended grounds of appeal as only being ground 3 which is directed at our

finding in paragraph 8.31 of the Judgment of the Court.

5.14 We must stress and reiterate that mistakes of such a fundamental nature

must lie against the Party who makes them. It is not the place of the Court,

let alone at appellate level, to correct blatant errors.

5.15 Even overlooking the error noted above, the Applicant canvasses the

argument that leave to appeal, is critical so that the Apex Court may

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 pronounce itself on novel areas of the Banker/Customer relationship and

the duty owed by a Bank to its customers, more so, on an account which is

opened for a specific purpose only. To th is extent, it has argued that the

Bank ought to make reasonable inquiries and as such, t he matter of a bank

mandate, is of public importance and transcends the interest of the Parties

to the action.

5.16 While the argument may, on the face of it, have an ingenuous ap peal and

public importance feature, we are of the considered opinion that there is

no point of law that has been raised which warrants the Supreme Court to

pronounce itself on. At best, the Applicant is attempting to challenge

findings of fact which were arrived at by the lower Court and upheld in our

Judgment. It is critical to note that the Bank was not found to have

abrogated or violated any normal banking duty that it was mandated to

perform . The Bank wa s also not found to be negl ige nt, an issue strongly

canvassed by the Applicant.

5.17 In th e cited Bidvest case, the Apex Court also revea led its mind on issues

wh ich could be viewed as raising a point of law of public importance. Th e

Supreme Court stated as follows:

"Second as regards the issue of whether every novel point should be

viewed as raising a point of law of public importance and thus
satisfying the threshold for the grant of leave to appeal, we must
state that novelty of a matter does not in itself and of itself turn a

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 matter into one that raises a point of public importance within the
intendment of section 13 {3} (a) of the Act. " (emphasis added).

5.18 It is fundamental in banking pract ice t hat before a customer alleges breach

of duty or obligation on the part of the Bank, it must prove that th e Bank

owed it that duty in the first place. The Applicant has argued that on the

facts at hand, the Bank ought to have made reasonable inquiries, as it had

been put on notice as to the specific purpose of the money. In casu, it was
established by both the documentary evidence and of th e witnesses, that

the Appl icant by its letter of 8th February 2016, changed signatories to

operate its USD Account. The Bank, in compliance with the resolution

allowed the newly appointed signatories to transact the said account, until

the Applicant, by its lett er issued someti me in June 2016, instructed the

Bank to revert to the original signatories. We are at a loss now, as we were

when we delivered our Judgment, as to wh ich duty the Bank is supposed to

have breached . This is a finding of fact. It is not a point of law, novel or

otherwise that needs det erm in at ion by the Supreme Court.

5.19 We have also in our said Judgment ful ly considered the authorities referred

to by the App licant, and wh ich it has de ployed to fu rt her canvass the

argument that the Apex Court must pronounce it self on th e aspect of duty

of care owed by a Bank to its customer. We have considered the cases of

Philips v Barclays Bank 8 and Barclays Bank v Quincecare Limited 9 and in

our considered opin ion, we were able to dist inguish the facts in casu to the

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 facts of the cases cited. On this point, we refer to paragraphs 8.18 to 8.22

of our Judgment.

5.20 We did equally pronounce on the duty of care, owed by a Bank t o its

Customer. We also referenced a decision of the Supreme Court rendered in

the case of Shreeji Investments Limited v Zambia National Commercial

Bank Plc 10, whic h confirmed banking practice which allows a duly

authorized signatory to operate th e account in question. Again, this

evidence was not challenged. The deponent at page 7, pa ragraph 6 of the

Affidavit in support has averred as follows:

" That the extent of a Bank's duty ;n cases such as this one where
there is misappropriation of funds by the authorized signatory of a
customer is one whose resoluUon will interest every Bank and in fact
every customer particularly companies/corporates that appoint
signatories to oversee their accounts."

5.21 We are of the cons id ered view th at this is a completely flawed argument. A

prudent customer does not appoint signatories to oversee their account,

signatories are mandated to manage and operate the account. Th is onus

cannot be placed on th e Bank in the face of no evidence to support it.

5.22 We also referred to our decision in th e case of First National Bank v Libyan

African Investments Company Limited 1 1, in wh ich the Bank was found

liable as it had been given actual notice, in writing of two fraudsters,

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 presenting themselves as officia ls of the Respondent. In casu, the Appl icant
itself authored a change of banking mandate and appointed new

signatories to the Account.

5.23 The factual argument that the Bank, having been put on notice as to the

purpose of the account and the maize contract between the App licant and

its business associates, and that it ought to have managed the account as

per the business, is an argument that has already been dismissed and is not

a point of law. Paragraph 8.37 of our Judgment refers.

5.24 With regard to ground four of the intended grounds of appeal, that the

Court erred in law and in fact by holding that the Bank was on firm ground

when it declined to give viewing rights to the Applicant, the evidence

before the Court was clear. There was no request in writing by the

Applicant that it had asked for such viewing rights or access to the internet

banking platform. There being no evidence that it made the request, there

is no issue of the same having been denied by the Bank. We refer to

paragraph 8.40 of our Judgment. Again, th is is a classic attempt to create a

hypothetical issue to warrant a pronouncement by the Supreme Court

under the gu ise of public importance and prospect of success.

5.25 Th e Applicant has continued to assert that all the grounds of appea l are

points of law, without actually supporting that statement. As we have

noted, the findings challenged are findings of fact and grounded in the

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 evidence placed before the trial court and which we saw no reason to

disturb.

Prospect of success

5.26 We must emphasize that all the intended grounds of appeal are findings of

fact, grounded on evidence before the court. There are no prospects of

success. We are also alive to the guidance of the Apex Court, in the case of

Barclays Bank Pie vs Jeremiah Njovu & Others 12, when dealing with the
1
principles of 'reasonable prospect of success on an application for leave to

appea l, and in rende rin g judgment Judge Mutuna emphasized as fol lows:

"Although section 13(3} (c) of the Court of Appeal, when dealing with
prospects of success, provides a stand-alone basis for granting leave
to appeal. It should, however, be resorted to very sparingly. It is not
every appeal that stands a nominal or notional chance of success that
qualifies to be heard by the Supreme Court. It must have real
prospects of success. My view is that the proposed appeal does not
present sufficient prospects of real, eventual success to justify the
intervention of the Supreme Court".

5.27 We are therefore of the settled view that the intended grounds of appeal

do not amount to a legal question or issue to be treated as points of law or

public importance. It is also trite that facts are foundational, and if those

facts have not been established before the lower Court, what magic wand

did the App licants expect this Court to waive, or indeed does it expect the

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 Supreme Court to use, in arriving at conclusions any different to the one s

already established.

5.28 Having analyzed the motion, we are of the considered view that the issues

only affect the private interests of the Applicant herein and this is its

attempt at re-litigating the same issues. We find no merit in the application

for leave to appeal to the Supreme Court.

We dismiss it with costs to the Respondent to be taxed in default of

agreement.

JUDGE PRESIDENT

F.M. CHISHIMBA A.N. PATEL S.C.

COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE

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