The 1st Respondent sued the Appellant and the 2nd Respondent. The trial court found that the Appellant and the 2nd Respondent acted negligently in debiting the 1st Respondent’s account and thus they were jointly and severally liable for the loss which was occasioned to the 1st Respondent. They were ordered to refund the 1st Respondent the claimed amount of Tshs. 214,941,397.00 with interest at the rate of 21% p.a. from the date of filling the suit to the date of payment in full. The 1st Respondent was also awarded general damages. With regard to the costs of the suit, the trial court did not make any order to that effect.
The Appellant was aggrieved by the decision of the trial court hence this appeal. The memorandum of appeal filed by the Appellant consisted of three grounds. In the 1st and 2nd grounds of appeal, the Appellant contended that the learned trial judge erred in deciding that the Appellant acted negligently in debiting from the first Respondent’s account while in doing so, it acted according to the written instruction of its customer and in accordance with its mandate to the 1st Respondent. Thirdly, that the trial judge erred in finding that the Appellant was jointly and severally liable with the 2nd Respondent for the loss claimed by the 1st Respondent.
On the other hand, the 2nd and 1st Respondents preferred cross-appeals. With regard to the cross-appeals, in the 1st ground of the 2nd Respondent’s cross-appeal, it was contended that the learned trial judge erred in holding that the 2nd Respondent collected the proceeds of cheque drawn by the 1st Respondent in favour of the Commissioner while, according to the evidence, the collected proceeds belonged to the MGS, the 2nd Respondent’s customer. It was contended further in the 2nd and 5th grounds that the trial judge erred firstly, in failing to find that the 1st Respondent could not in law maintain an action for wrongful conversion of the 1st Respondent’s cheque and secondly, that the 2nd Respondent acted in good faith and without negligence in crediting the MGS account.
In the 3rd ground, the 2nd Respondent faulted the learned trial judge for holding that the cheque used to debit the 1st Respondent’s account in favour of the MGS was a forged cheque while there was no evidence to that effect. The decision of the High Court is further challenged in the 4th ground on the contention that the learned trial judge erred in failing to find that the 1st Respondent was negligent in handling its cheque while there was sufficient evidence proving that it played an active role in perpetrating the fraud which led to the transactions complained of.
The 6th and 7th grounds of the 2nd Respondent’s cross-appeal challenged the holding of the learned trial judge that the 2nd Respondent and the Appellant were jointly and severally liable for the 1st Respondent’s loss thus apportioning to them the awarded amounts. The 2nd Respondent contends that the learned trial judge erred in failing to consider firstly, the degree and the extent of the 1st Respondent’s negligence and secondly, the fact that the 1st Respondent was not a customer of the 2nd Respondent and for that reason did not owe a duty of care to it.
On the part of the 1st Respondent, its ground of the cross appeal was that the Honourable trial judge erred in law and in fact in not awarding costs of the suit to the 2nd Respondent.