Kazimoto, J: The plaintiff, Morogoro Stores (1976) Ltd. has been a client of the C defendant the National Bank of Commerce, City Drive Branch Dar es salaam since 1976. On 27th June, 1983 the plaintiff alleges, and the defendant denies, that he deposited the sum of Shs. 31,200/= in his account with the D defendant. As the defendant has denied having received the money the plaintiff now sues the defendant to recover the said sum of Shs.31,200/= plus interest and costs.
At the hearing five issues were agreed and framed and in my view the case depends on issue one which if established the rest will automatically follow. The issues are: E
(a) Did the plaintiff pay in his bank account Shs.31,200/= as shown in Exh. A to the Plaint?
(b) Did the defendant fail to credit the plaintiff's account with the said sum? F
(c) Has the defendant wrongfully converted the said money to his own use and wrongfully deprived the plaintiff the use thereof?
(e) What reliefs are the parties entitled to?
Zainabu Noordin (PW.1) testified for the plaintiff. He is the General Manager of the company. He told the court G that his company has been operating an account with the defendant since 1/7/1976 and that one Shaban Mohamed was depositing the money on behalf of the company. He stated that the said Shaban Mohamed had been working for the plaintiff for about five years and that he (PW.1) had always given Shaban Mohamed cash H to bank and that he would return with pay-in-slip to him. He told the court that on 27/6/83 he gave Shs.31,200/= to Shaban Mohamed to bank and he banked the money and then returned with pay-in-slip which I bore the defendant's bank rubber stamp. He told the court that when he checked his bank statement on 19/7/83 he found that the money was not credited in his account. He said later Shaban Mohamed was arrested, and charged with theft by servant but was
acquitted. He stated that he trusted Shaban Mohamed, that he has never failed to deposit cash in his account A and that when he saw the pay-in-slip he understood that the money was banked. When cross-examined by Mr. Rutagatina learned defence counsel for the defendant PW.1 stated that he would not know if the bank stamp was B real or fake. He denied having known code number of the defendant's bank. He stated that the defendant bank has no code number and that all that he knows is that there is a teller's number. He further stated that he would not know if the money was deposited with the defendant or Shabani Mohamed had stolen it. When re-examined he denied that he was given specimen stamps and that there is no way of ascertaining the teller's C stamp.
Roman Peter Ndanzi (DW.1) an accountant with defendant informed the court that he has been working with defendant since 1979 and that he knows the plaintiff as one of their clients. He told the court when a customer banks money he fills a pay-in-slip and presents it to the teller. The slip bears the bank's stamp, the initials of the D teller, the teller's number and the code number of the bank. He denied that on 27th June, 1983 the plaintiff deposited cash with the defendant. He told the court that the defendant's Code number is no.2 and that annexure E A has only teller's numbers and it does not have the defendant's code. He has produced a copy of pay-in-slip Exh. D1 which he alleges to be authentic, and that annexure A to the plaint is a fake pay-in-slip. When cross-examined by Mr. Kesaria the learned counsel for the plaintiff DW.1 admitted that there is no warning to warn customers. He admitted that annexure A has initials of the teller. He denied that the money was deposited. F He further stated that he would not have credited the money without pay-in-slip. He admitted that if the money is deposited interest would have been paid.
As indicated earlier on the case hinges on issue number one. If the hinges don't withstand the weight they collapse. DW.1 denies that the money alleged to have been deposited vide Annexure A was infact deposited as G it lacked the features peculiar to the defendant's bank stamp. I have carefully examined annexure A and compared it with Exh. D1. Exh. D1 is in respect of a deposit which the plaintiff made. Whereas Exhibit D1 shows that the money was received by teller 2, annexure A to the plaint does not show clearly the teller's H number. Again in Exhibit D1 there are the following words "City Drive Br.2, D'Salaam (I have omitted the words National Bank of Commerce). In Annexure A to the plaint there appears the following words, as is relevant "City Drive Branch". It should be noted that in Exhibit D1 the word "Branch" is abbreviated followed I immediately with the Figure "2" and then followed by the word "D'Salaam". It should also be noted that in annexure A to the plaint the
word "Branch" is written in full, figure "2" is missing and the word "D'Salaam" is written in full and appears below A the words "City Drive Branch". Exhibit D1 shows two deposits made by the plaintiff on 28/6/1983. Even to the unaccustomed but scrupulous observer he would not have failed to notice the naked difference between B annexure A to the plaint and Exhibit D1. Having pointed out these vital and basic differences between the two documents tendered in evidence I am left in no doubt in my mind that annexure A to the plaint is not an authentic document and the money allegedly deposited with the defendant was not in fact deposited. Mr. Kesaria learned C advocate referred me to two English cases Lewes Sanitary Steam Laundry Company (Ltd) v Barclay and Company (Ltd) [1906] TLR page 737 and The Kepitigalla Ruber Estates, Limited v The National Bank of India, Limited (1909) 2 KB 1010. Both these cases deal with the defence of estoppel by negligence. In the D Lewes Sanitary Steam case the directors of the company appointed the son of the Chairman as secretary of the company and allowed the secretary to have the custody of the company's cheque book and bank pass-book. In order to draw a cheque the signature of the secretary and a director were required. The secretary forged the E signature of a director to a number of cheques purporting to be drawn on behalf of the company, and obtained payment from the company's bankers. On an action brought against the defendant to recover the amount the defendants raised the defence of negligence by estoppel. Kennedy J., held, after quoting a number of authorities F that:
But in order to relieve the banker from the consequence of paying money upon a forged cheque, it is not enough for the banker to show that the conduct of his customer, wilful, careless or wasteful or all, enabled the fraud to be committed. He G must show that the customer caused him to pay the money upon the forged cheque. It is not enough to show that the customer gave occasion for his so paying .... The carelessness of the customer or neglect of the customer to take precautions unconnected with the act itself, cannot be put forward by the banker as justifying his own default.
The facts in Kepitigalla's case above quoted are exactly the same as the Lewes Sanitary Steam case. But I H tend to think that the principles in these two cases cannot be applied to the facts in the present case. Whereas in these cases the servants of the plaintiff companies forged cheques which enable the defendant companies to pay I funds out of the plaintiffs accounts, in the present case it was established that the defendant never received and therefore never paid any money out of the plaintiff's
account. I think the defendant would be liable if it were established that Annexure A to the plaint were authentic A and the defendants servants did not enter the amount in the plaintiff's account. I gather from cross-examination by Mr. Kesaria that as the pay-in-slip is prepared and issued by the defendant, that once a customer has filled in the pay-in-slip which is stamped by the defendant's stamp, that as there is no warning to warn customers of fake B stamps, then the defendant should be held liable. Yes the defendants will be held liable if the pay-in-slip contains the defendants bank rubber stamp. But in this case Annexure A does not have, as demonstrated above, the defendant's rubber stamp or even a semblance of such stamp. I am not persuaded to hold the mere fact that C there is no warning about fake stamps should render the defendant liable.
For these reasons, having found that plaintiff did not pay in his bank account the sum of Shs.31,200/= as shown in Exhibit A to the plaint, I am satisfied that the plaintiff's case fails as the defendant would not have done what is D alleged in issues (b) and (c) nor is the plaintiff entitled to any interest claimed in issue (d). Consequently I dismiss the plaintiff's claim with costs.
Judgment for the defendant
F
