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FBC BANK LIMITED Versus ESTHER CHEKENYERE and RODRICK

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FBC BANK LIMITED Versus ESTHER CHEKENYERE and RODRICK 1 HH 694-14 HC 3926/10 FBC BANK LIMITED versus ESTHER CHEKENYERE and RODRICK CHONGO and EDWIN MASIRIVHA and KUBATANA ORGANISATION and WESTON TIZORA and JOB MAROWA and REBEKA MATEKENYE and CRESTBERG ENTERPRISES (PVT) LTD and STUDMORE MUCHINERIPI and ADDMORE KARIMBA and DAVID MAGURAMENO and FLIPSIDE INVESTMENTS (PVT) LTD and CEPHAS MANDINGWA and MERCY CHAPUKIRA MAKANANI and PATRICIA GASSELER and GOLDEN CHEKENYERE and DZIMBANHETE CHEKENYERE and JOHNSON CHEKENYERE and ELDAH CHEKENYERE and CYNTHIA ZHOU and ROSEMARY CHANJAYANI 2 HH 694-14 HC 3926/10 HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 11, 12, 13, 14, 18, 19, 25 November 2014 and 17 December 2014 Civil Trial E. T. Matinenga, for the plaintiff N.P. Phiri, for the 1st, 15th, 16th 18th, 19th and 20th defendants The 2nd defendant in default The 3rd defendant, in person B. Mungure, for the 4th and 5th defendants The 17th defendant, in default The 21st defendant, in default MATHONSI J: The plaintiff is a commercial bank which at the material time employed the first defendant as Branch Operations Manager, the second defendant as the Customer Services Officer and the third defendant as the Back Office Clerk at its Mutare Branch. The fourth, the fifth, the eighth, the eleventh, the twelfth, the fourteenth, the fifteenth and the sixteenth defendants were its customers who held bank accounts at the plaintiffs Mutare Branch with the eighteenth and twentieth defendants holding their accounts at the plaintiff’s Masvingo Branch. The sixteenth, the seventeenth, the eighteenth, the nineteenth, the twentieth and the twenty first defendants are said to be relatives or connections of the first and the second defendants formerly employed by the plaintiff as already stated, with the sixteenth and the seventeenth defendants being the first defendant’s brothers while the eighteenth defendant is her father. The twentieth defendant is said to be the first defendant’s sister in law and wife of the seventeenth defendant. The twenty first defendant is the second defendant’s sister. On 11 June 2010, the plaintiff sued out a summons against the 21 defendants claiming a total of US$1 505 122-00 against the various defendants which money it alleged was fraudulently removed from it through the medium of bank accounts held by some of the defendants. In due course, the plaintiff withdrew its claims against the sixth, the seventh, the eighth, the ninth, the tenth, the twelfth, the thirteenth, the fourteenth and the fifteenth defendants but persisted with claims against the balance of the 12 defendants. 3 HH 694-14 HC 3926/10 In its declaration the plaintiff averred that on various occasions during the period extending from 21 September to 31 December 2009 the first, the second and the third defendants, acting in concert generated false documentation misrepresenting inter alia that there were incoming funds being transferred by way of Real Time Gross Settlement System (RTGS) or that there had been transfer of funds between accounts and that way credited the accounts of the fourth, the fifth, the eighth, the eleventh, the twelfth, the fourteenth and the fifteenth defendants with various sums of money. Those sums of money were then withdrawn from the various accounts thereby fraudulently causing the plaintiff to suffer loss in the sum of US$1 505 122-00. The plaintiff averred further that the first defendant generated the false documentation that the funds were being transferred into the accounts. In their capacities as customer services officer and Back Office Clerk respectively, the second and the third defendants oversaw and authorized the false documentation and either themselves or through their subordinates, made entries in the plaintiff’s computerized system that the accounts were credited with the specific sums of money. On their part, the fourth, the fifth, the eighth, the eleventh, the twelfth, the fourteenth and the fifteenth defendants, knowingly and intentionally, with the connivance of the plaintiff’s 3 employees, removed the money belonging to the plaintiff by making withdrawals. Using that modus operandi the first, the second, the third and the fourth defendants, misrepresented that the fourth defendant’s account was credited with US$885 760-00 when it was not which they then removed. The first, the second, the third and the fifth defendants misrepresented that the fifth defendant’s account was credited with US$52100-00 when it was not, which amount they fraudulently removed. The first, the second, the second and the eighth defendants misrepresented that the eighth defendant’s account had US$432 670-00 credited which amount they removed. The first, the second, the third and the eleventh defendants misrepresented that the eleventh defendant’s account had US$16 792-00 in credit when it was not and they removed that amount. The first, the second, the third and the twelfth defendants misrepresented that the latter’s account was credited with US$72 000-00 before fraudulently removing it. The first, the second, the third and the fourteenth defendants misrepresented that the latter’s account had a credit of 4 HH 694-14 HC 3926/10 US$23 900-00 which they fraudulently withdrew. The first, the second, the third and the fifteenth defendants fraudulently withdrew US$22 100-00. The plaintiff averred further that the sixteenth defendant, received stolen money from the first, the second and the third defendants and used US$180 000-00 to purchase stand 259 Mandara Township of Lot 3A Mandara Harare. The seventeenth defendant received US$7 700- 00 of the stolen money and also, in concert with the nineteenth defendant, he purchased stand 180 The Grange Township of The Grange, Harare for a sum of US$120 000-00 of the stolen money. The eighteenth defendant received US$56 100-00 of the money, while the twentieth defendant got US$45 100-00. Working in cahoots with the first, the second and the third defendants, the twenty first defendant purchased 2 immovable properties in Marlborough Harare and Seke, Chitungwiza as well and various items of furniture. The plaintiff premised its claims against the various defendants on fraud and on unjust enrichment and craved for judgment against the defendants in the various sums they allegedly siphoned from the bank and a declaration that the properties allegedly purchased from the proceeds of the fraud were so purchased and therefore executable. Alternatively the plaintiff prayed for damages of US$1 505 122-00 against the first, the second and the third defendants jointly and severally the one paying the others to be absolved. The action was contested by all the defendants except for the second defendant who, although he was served with the summons on 17 June 2010, did not enter appearance to defend. As I have said, the claims against the sixth, the seventh, the eighth, the ninth, the tenth, the twelfth, the thirteenth, the fourteenth and the fifteenth defendants have been withdrawn. This judgment henceforth focuses on the remaining defendants. In their joint plea, the first, the sixteenth, the seventeenth, the eighteenth, the nineteenth defendants denied conspiring to defraud the plaintiff. The first defendant denied having a hand in the generation of fraudulent transactions nor authorising them and stated that most of the transactions occurred while she was on leave. They all denied using the plaintiff’s money to purchase any property with the seventeenth defendant asserting that he is a business man based in the United States of America who used funds from his business to purchase property. The nineteenth defendant averred that she assisted the seventeenth defendant to acquire a house well knowing that the purchase price came from his business ventures. The sixteenth and the 5 HH 694-14 HC 3926/10 seventeenth defendants averred that although Stand 259 Mandara Township is registered in the former’s name, it was bought by and belongs to the latter. In his plea the third defendant denied generating any false information maintaining that senior officers of the plaintiff must have obtained his password and used it for fraudulent purposes without his knowledge. He also averred that some of the fraudulent transactions took place at a time which he was on leave. He took a swipe at the plaintiff for making “a reasonable error and for having poor corporate governance systems in place” which caused the loss. The fourth and the fifth defendants admitted in their joint plea that they held bank accounts with the plaintiff, but denied conspiring with any of the defendants to fraudulently remove money from the plaintiff and denied any knowledge that the bank employees were committing a fraud at the relevant time. They maintained that although aware that money was being deposited into their accounts by the second defendant who would then take it out again, they had no knowledge that this was fraudulent. The fourth and the fifth defendants admitted that cash withdrawals were made from their bank accounts at the request of the second defendant who claimed to own the money and had their authority to utilize the account for that purpose and that; “at the material times (sic) the second defendant would keep cash withdrawal slips for use in withdrawing some money from the fourth and the fifth (defendants’) accounts whenever they would have been credited with some funds”. They averred further that they genuinely believed that the transactions were lawful and above board. They denied liability insisting that all the money withdrawn from their accounts “was taken by the second defendant who claimed to be his” (sic). The fifth defendant admitted that he signed the withdrawal slips although any withdrawals made were “by and at the instance of the second defendant”. They denied being unjustly enriched, as whatever amount was credited into their accounts was withdrawn “by and at the insistence of the second defendant who made good use of it”.
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