First Capital Bank escapes $1 million lawsuit

By Mary Taruvinga

FIRST Capital Bank Limited has escaped a US$1 million lawsuit after the High Court dismissed a claim by a local travel agent, Sharai Chimimba, who was arrested after the bank unlawfully withheld funds intended to the plane tickets of its customers.

The bank caused Chimimba’s arrest after withholding approximately US$20,000 that was intended for customers’ airline tickets, leading to his arrest and detention.

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

She had sued the bank for attacking 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 $19,130, to a domestic Nostro FCA account, with an opening balance of $1,050.

This resulted in the company failing to meet its financial obligations to pay for visas and airline tickets for its customers.

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

Chimimba said she was humiliated and called a fraudster.

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

The High Court Judge, Judge Jacob Manzunzu, upheld the bank’s plea for relief.

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

“In the written heads, the argument of the plaintiff (Chimimba) is that the defendant must bear all the consequences arising from his unlawful action of withholding funds, which caused the various individuals to bring about the arrest of the plaintiff. The plaintiff shifted her argument from a request for iniuriarum action to a request for wrongful arrest. The argument is moved. Either way, the defendant’s conduct must have caused, both in law and in fact, the harm for which reparation is sought,” the judgment reads.

“In the premise, it was argued, an exception cannot be made if the issue can be resolved by evidence or other details. Either way, the evidence can’t begin to flow into a new area that hasn’t been litigated. The fact that proof will be adduced does not exempt the plaintiff from the obligation to state the facts in the declaration which, if proven, will enable the plaintiff to obtain judgment. In casu, there is no legal causal link. I agree with the issue of misconsolidation raised by the respondent.

“Having found no merit to the cause of action exception, I do not find it necessary to address the question of whether the remedy sought is competent or not.

While I agree that the plaintiff’s claim is outrageous because it bears no relation to compensation awarded in comparable cases, the court cannot take an informal approach to the kind of frustration that arises from the defendant’s conduct in withholding the money it holds in trust. I find no basis to penalize the plaintiff on costs,” the judge ruled.