First Capital Bank escapes US$1 million lawsuit

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By Mary Taruvinga

FIRST Capital Bank Limited has escaped a US$1 million lawsuit after the High Court dismissed an application by a local travel agent, Sharai Chimimba, who got arrested after the bank illegally withheld funds meant for her customers’ air tickets.

The bank caused the arrest of Chimimba after it withheld about US$20 000 which was meant for clients’ air tickets, which resulted in her being arrested and detained.

Chimimba is a director of a visa processing and air travel ticketing company, Participatory Approaches Consultancy Services (Private) Limited, majoring in prospective employees in the Middle East and Canada.

She had issued summons against the bank for impairment of her personality and reputation during her wrongful arrest in 2018.

Chimimba said the bank unilaterally converted the company’s foreign account, which had a balance of US$19 130, into a Nostro FCA domestic account, with an opening balance of US$1 050.

This resulted in the company failing to meet its financial obligations to pay for its clients’ visas and air tickets.

As a result, she was reported to the police by frustrated customers.

Chimimba said she was humiliated and labelled a fraudster.

The bank filed an exception early January this year, arguing that the summons and declaration do not comply with certain provisions of the High Court rules, adding that she had sued the wrong defendant.

High Court judge ,Justice Jacob Manzunzu, upheld the bank’s application for exception.

The judge, however, descended on the financial institution for betraying utmost good faith entrusted to them by withholding Chimimba’s money.

“In the written heads,  the plaintiff’s (Chimimba) argument is that the defendant must carry all the consequences arising from its unlawful action of withholding funds, which caused the various individuals to cause the arrest of the plaintiff. The plaintiff shifted her argument from a claim of action iniuriarum to one for wrongful arrest. The argument is misplaced. Be that as it may, the conduct of the defendant must have caused, both legally and factually, the harm for which compensation is sought,” read the judgement.

“In the premise, it was argued, an exception cannot be taken if the issue is capable of being resolved through evidence or further particulars. Be that as it may, evidence cannot start trading in a new area which has not been pleaded. The fact that evidence will be led does not absolve the plaintiff’s obligation to set out facts in the declaration, which, if proved, will enable the plaintiff to obtain judgement. In casu there is no legal causal link. I agree with the issue of misjoinder raised by the defendant.

“Having found no merit in the exception in respect to the cause of action, I find no need to deal with the issue of whether or not the relief sought is competent.

While I accept that the plaintiff’s claim is outrageous as it bears no relation to awards made in comparable cases, the court cannot have an armchair approach towards the kind of frustration born out of the conduct by the defendant in withholding money held by it in trust. I find no basis to penalise the plaintiff on costs,” ruled the judge.