Source:

Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/2001 (2)/Cases Reported/DAVID v. BARCLAYS BANK OF BOTSWANA and
Another 2001 (2) BLR 340 (HC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4475/4480/4526?f=templates$fn=default.htm

DAVID v. BARCLAYS BANK OF BOTSWANA and Another 2001 (2) BLR 340 (HC)

Citation 2001 (2) BLR 340 (HC)

Court High Court, Francistown

Judge Mwaikasu J

Judgment August 2, 2001

Counsel W. B. Nfila for the plaintiff.

M. Manyothwane for the first defendant.

Annotations None

Flynote
Banks ­ Liability of ­ Duty to observe banker­customer confidentiality ­ Banker required by order of magistrate in terms of section 250(1) of the
Criminal Procedure and Evidence Act (Cap. 08:02) to reveal information ­ Extent of banker's duties ­ Validity of order that provided for bank to
provide "all relevant information".

2001 (2) BLR p341

Headnote
The plaintiff instituted action for damages against the first defendant, his banker, claiming that it had breached its A duty to observe banker­
customer confidentiality by making disclosure to the third defendant, a police officer, of the details of his banking account. The plaintiff alleged
that the bank had in error credited his account with a large sum of money and then corrected the error and the influx of the large sum had
caused suspicions to arise. The plaintiff also claimed that the bank was under a duty to disclose to the third defendant that it had credited his
account with the large sum of money and that its failure to disclose this to the third defendant was wrongful and B that he had suffered
damages of P50,000.00 in this regard as well. He also claimed damages of P10,000.00 from the Attorney­General and the third defendant for
wrongful arrest. The third defendant obtained an order from a magistrate in terms of section 250(1) of the Criminal Procedure And Evidence Act
(Cap. 08:02) compelling the bank to produce "all relevant information and documentation relating to the plaintiff's account". C
Held: (1) It was mere speculation on the part of the plaintiff that it was the incorrect credit to his account that had led the third defendant to
investigate him. Even if the bank suspected that the credit entries had caused the police to have suspicions, that could not in law place a duty
on the bank to disclose the source of the credits to the third defendant without the plaintiff's authorisation. D
(2) The court order was ultra vires the provisions of section 250(1) of the Act to the extent that it required the bank to produce "relevant
information". Whatever information the bank was to produce was at the instance or request of the third defendant and not at its own initiative
and it had not been shown that the third defendant demanded such information from the first defendant. E
(3) It was not required by section 250(1) that the bank had to disclose the sources of the credits in the plaintiff's account: that was the duty
of the investigating officer to find out from the customer whose accounts were being investigated and the plaintiff had failed to disclose a
cause of action for his second claim.
Case Information
Cases referred to: F

(1) Donoghue v. Stevenson [1932] A.C. 562

(2) Tournier v. National Provincial and Union Bank of England [1924] 1 K.B. 461
(3) Williams v. Summerfield [1972] 2 Q.B. 512
EXCEPTION to particulars of claim in respect of an action for damages. The facts are stated sufficiently in the G judgment.
W. B. Nfila for the plaintiff.
M. Manyothwane for the first defendant.
Judgment
Mwaikasu J.: H

By a writ of summons taken on 8 October 1997, the plaintiff, one Emmanuel David, claims as per his amended declaration, from the first
defendant, Barclays Bank of Botswana Ltd, his banker, damages in the sum of P10,000.00, plus interest and costs, for having wrongfully and
without authority, debited plaintiff's savings account No. 5146801 (old) and No.

2001 (2) BLR p342

MWAIKASU J
554210 (new) at first defendant's Selebi Phikwe branch in the sum of P6,000.00 sometime in 1996; he further A claims from the first defendant
damages in the sum of P50,000.00, plus interest and costs, jointly and severally with the second and third defendant for the first defendant's
failure to disclose to the third defendant the sources of deposits made by the first defendant to the plaintiff's account aforementioned in excess
of P6,000.00, in rectifying the sums of money that had been erroneously debited to the plaintiff's account, which was then the B subject of
suspicion by the third defendant, a police officer, as having been unlawful diamond proceeds, and led the third defendant to investigate
plaintiff's account; on the other hand, as against the second and third defendant being the Attorney­General, and one Detective Sergeant
Manewe, respectively, the plaintiff claims damages in the sum of P10,000.00, plus, interest and costs, for having been unlawfully arrested on 24
February 1997, at C Orapa, and thereafter being unlawfully detained for hours at Orapa police station while carrying out the investigation on
the suspected deposits, of unlawful diamond proceeds into the plaintiff's above mentioned account held with the first defendant.
The third defendant was mandated by a court order to carry out the investigation in respect of the plaintiff's account upon swearing an
affidavit on the suspicion that led to such investigation and the court order, which was D addressed to the first defendant, and dated 30
October 1996, was in the following terms:
"It is hereby ordered as prayed under the Criminal Procedure and Evidence Act, Cap. 08:02, of the Botswana Laws section 250(1)(a), (b) of the Criminal
Procedure and Evidence to produce all relevant information and document relating to account E of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
© 2018 Juta and Company
SERGEANT (Pty)O.
MANAWE, Ltd.
of Botswana Police." Downloaded : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)
 provide "all relevant information".

2001 (2) BLR p341

Headnote
The plaintiff instituted action for damages against the first defendant, his banker, claiming that it had breached its A duty to observe banker­
customer confidentiality by making disclosure to the third defendant, a police officer, of the details of his banking account. The plaintiff alleged
that the bank had in error credited his account with a large sum of money and then corrected the error and the influx of the large sum had
caused suspicions to arise. The plaintiff also claimed that the bank was under a duty to disclose to the third defendant that it had credited his
account with the large sum of money and that its failure to disclose this to the third defendant was wrongful and B that he had suffered
damages of P50,000.00 in this regard as well. He also claimed damages of P10,000.00 from the Attorney­General and the third defendant for
wrongful arrest. The third defendant obtained an order from a magistrate in terms of section 250(1) of the Criminal Procedure And Evidence Act
(Cap. 08:02) compelling the bank to produce "all relevant information and documentation relating to the plaintiff's account". C
Held: (1) It was mere speculation on the part of the plaintiff that it was the incorrect credit to his account that had led the third defendant to
investigate him. Even if the bank suspected that the credit entries had caused the police to have suspicions, that could not in law place a duty
on the bank to disclose the source of the credits to the third defendant without the plaintiff's authorisation. D
(2) The court order was ultra vires the provisions of section 250(1) of the Act to the extent that it required the bank to produce "relevant
information". Whatever information the bank was to produce was at the instance or request of the third defendant and not at its own initiative
and it had not been shown that the third defendant demanded such information from the first defendant. E
(3) It was not required by section 250(1) that the bank had to disclose the sources of the credits in the plaintiff's account: that was the duty
of the investigating officer to find out from the customer whose accounts were being investigated and the plaintiff had failed to disclose a
cause of action for his second claim.
Case Information
Cases referred to: F

(1) Donoghue v. Stevenson [1932] A.C. 562

(2) Tournier v. National Provincial and Union Bank of England [1924] 1 K.B. 461
(3) Williams v. Summerfield [1972] 2 Q.B. 512
EXCEPTION to particulars of claim in respect of an action for damages. The facts are stated sufficiently in the G judgment.
W. B. Nfila for the plaintiff.
M. Manyothwane for the first defendant.
Judgment
Mwaikasu J.: H

By a writ of summons taken on 8 October 1997, the plaintiff, one Emmanuel David, claims as per his amended declaration, from the first
defendant, Barclays Bank of Botswana Ltd, his banker, damages in the sum of P10,000.00, plus interest and costs, for having wrongfully and
without authority, debited plaintiff's savings account No. 5146801 (old) and No.

2001 (2) BLR p342

MWAIKASU J
554210 (new) at first defendant's Selebi Phikwe branch in the sum of P6,000.00 sometime in 1996; he further A claims from the first defendant
damages in the sum of P50,000.00, plus interest and costs, jointly and severally with the second and third defendant for the first defendant's
failure to disclose to the third defendant the sources of deposits made by the first defendant to the plaintiff's account aforementioned in excess
of P6,000.00, in rectifying the sums of money that had been erroneously debited to the plaintiff's account, which was then the B subject of
suspicion by the third defendant, a police officer, as having been unlawful diamond proceeds, and led the third defendant to investigate
plaintiff's account; on the other hand, as against the second and third defendant being the Attorney­General, and one Detective Sergeant
Manewe, respectively, the plaintiff claims damages in the sum of P10,000.00, plus, interest and costs, for having been unlawfully arrested on 24
February 1997, at C Orapa, and thereafter being unlawfully detained for hours at Orapa police station while carrying out the investigation on
the suspected deposits, of unlawful diamond proceeds into the plaintiff's above mentioned account held with the first defendant.
The third defendant was mandated by a court order to carry out the investigation in respect of the plaintiff's account upon swearing an
affidavit on the suspicion that led to such investigation and the court order, which was D addressed to the first defendant, and dated 30
October 1996, was in the following terms:
"It is hereby ordered as prayed under the Criminal Procedure and Evidence Act, Cap. 08:02, of the Botswana Laws section 250(1)(a), (b) of the Criminal
Procedure and Evidence to produce all relevant information and document relating to account E of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
SERGEANT MANAWE, O. of Botswana Police."

The order was signed by a senior magistrate. F

To such declaration, on 15 April 1999, the first defendant filed an exception, among other things, to the effect that the first defendant was,
under a legal duty, to observe banker­customer confidentiality not to make any disclosure of information to the second defendant (correctly
third defendant) regarding plaintiff's accounts.
It is in respect of such exception that this ruling is all about. G

At the outset let it be pointed out, for the avoidance of confusion, that the claim of the plaintiff for damages as against the first defendant, is
one arising out of a contractual relationship between the first defendant as banker and the plaintiff as the first defendant's customer and the
statutory provisions under the Criminal Procedure and Evidence Act, regarding the inspection of bank accounts by a police officer. It is not one
in tort. Thus any H arguments and authorities that are based on tortuous liability, as some of the arguments and authorities brought out in the
heads of arguments for the plaintiff appear to be, regarding the first defendant's liability to the plaintiff, such as the case of Donoghue v.
Stevenson [1932] A.C. 562, are clearly irrelevant. It is the second and third defendants' liability arising out of the alleged unlawful arrest and
detention of the plaintiff that can properly

2001 (2) BLR p343

MWAIKASU J
be described as a tortuous liability. That said, I now proceed to consider the submissions by the learned counsel A for both sides on the
subject.
Starting with the arguments for the first defendant, learned counsel for the first defendant has argued, inter alia, that the first defendant as
the plaintiff's banker was in law, under a legal duty to observe banker­customer confidentiality not to make any disclosure of information to the
second (correctly third) defendant regarding the plaintiff's accounts, as the plaintiff had not at any time authorized the first defendant to make
any disclosure of B information regarding his accounts to the second or third defendant. He argued further that for the first defendant to
unilaterally disclose such information without the knowledge and express consent of the plaintiff would have been a breach of the first
defendant's duty to the plaintiff to maintain confidentiality of the plaintiff's accounts, citing the case of Tournier v. National Provincial and
Union Bank of England [1924] 1 K.B. 461. C
Counsel for the first defendant has further argued that the first defendant was bound, in law, to allow the inspection of ledger books and
cashbooks regarding the plaintiff's accounts in terms of the affidavit presented to it by the third defendant on or about 29 October 1999, adding
that the first defendant, being legally bound to observe banker­customer confidentiality, was not in a position to disclose any further
information to the third D defendant concerning the plaintiff's account, save that which was ordered in the affidavit without the plaintiff's own
consent.
© 2018 It Company
Juta and is then the
(Pty)submission
Ltd. of the learned counsel that first defendant's conduct
Downloaded was
: Mon Marnot wrongful,
18 2024 citing
07:53:22 section
GMT+0200 250 Africa
(South of theStandard
CriminalTime)
Procedure and Evidence Act (Cap. 08:02); Tournier's case (supra) at 483; Williams v. Summerfield [1972] 2 Q.B. 512. E
 without authority, debited plaintiff's savings account No. 5146801 (old) and No.

2001 (2) BLR p342

MWAIKASU J
554210 (new) at first defendant's Selebi Phikwe branch in the sum of P6,000.00 sometime in 1996; he further A claims from the first defendant
damages in the sum of P50,000.00, plus interest and costs, jointly and severally with the second and third defendant for the first defendant's
failure to disclose to the third defendant the sources of deposits made by the first defendant to the plaintiff's account aforementioned in excess
of P6,000.00, in rectifying the sums of money that had been erroneously debited to the plaintiff's account, which was then the B subject of
suspicion by the third defendant, a police officer, as having been unlawful diamond proceeds, and led the third defendant to investigate
plaintiff's account; on the other hand, as against the second and third defendant being the Attorney­General, and one Detective Sergeant
Manewe, respectively, the plaintiff claims damages in the sum of P10,000.00, plus, interest and costs, for having been unlawfully arrested on 24
February 1997, at C Orapa, and thereafter being unlawfully detained for hours at Orapa police station while carrying out the investigation on
the suspected deposits, of unlawful diamond proceeds into the plaintiff's above mentioned account held with the first defendant.
The third defendant was mandated by a court order to carry out the investigation in respect of the plaintiff's account upon swearing an
affidavit on the suspicion that led to such investigation and the court order, which was D addressed to the first defendant, and dated 30
October 1996, was in the following terms:
"It is hereby ordered as prayed under the Criminal Procedure and Evidence Act, Cap. 08:02, of the Botswana Laws section 250(1)(a), (b) of the Criminal
Procedure and Evidence to produce all relevant information and document relating to account E of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
SERGEANT MANAWE, O. of Botswana Police."

The order was signed by a senior magistrate. F

To such declaration, on 15 April 1999, the first defendant filed an exception, among other things, to the effect that the first defendant was,
under a legal duty, to observe banker­customer confidentiality not to make any disclosure of information to the second defendant (correctly
third defendant) regarding plaintiff's accounts.
It is in respect of such exception that this ruling is all about. G

At the outset let it be pointed out, for the avoidance of confusion, that the claim of the plaintiff for damages as against the first defendant, is
one arising out of a contractual relationship between the first defendant as banker and the plaintiff as the first defendant's customer and the
statutory provisions under the Criminal Procedure and Evidence Act, regarding the inspection of bank accounts by a police officer. It is not one
in tort. Thus any H arguments and authorities that are based on tortuous liability, as some of the arguments and authorities brought out in the
heads of arguments for the plaintiff appear to be, regarding the first defendant's liability to the plaintiff, such as the case of Donoghue v.
Stevenson [1932] A.C. 562, are clearly irrelevant. It is the second and third defendants' liability arising out of the alleged unlawful arrest and
detention of the plaintiff that can properly

2001 (2) BLR p343

MWAIKASU J
be described as a tortuous liability. That said, I now proceed to consider the submissions by the learned counsel A for both sides on the
subject.
Starting with the arguments for the first defendant, learned counsel for the first defendant has argued, inter alia, that the first defendant as
the plaintiff's banker was in law, under a legal duty to observe banker­customer confidentiality not to make any disclosure of information to the
second (correctly third) defendant regarding the plaintiff's accounts, as the plaintiff had not at any time authorized the first defendant to make
any disclosure of B information regarding his accounts to the second or third defendant. He argued further that for the first defendant to
unilaterally disclose such information without the knowledge and express consent of the plaintiff would have been a breach of the first
defendant's duty to the plaintiff to maintain confidentiality of the plaintiff's accounts, citing the case of Tournier v. National Provincial and
Union Bank of England [1924] 1 K.B. 461. C
Counsel for the first defendant has further argued that the first defendant was bound, in law, to allow the inspection of ledger books and
cashbooks regarding the plaintiff's accounts in terms of the affidavit presented to it by the third defendant on or about 29 October 1999, adding
that the first defendant, being legally bound to observe banker­customer confidentiality, was not in a position to disclose any further
information to the third D defendant concerning the plaintiff's account, save that which was ordered in the affidavit without the plaintiff's own
consent. It is then the submission of the learned counsel that first defendant's conduct was not wrongful, citing section 250 of the Criminal
Procedure and Evidence Act (Cap. 08:02); Tournier's case (supra) at 483; Williams v. Summerfield [1972] 2 Q.B. 512. E
It is further the contention for the first defendant that the first defendant did not negligently or deliberately fail to inform the second (third)
defendant of the circumstances surrounding the various adjustments of plaintiff's bank balance, because, first, it is unreasonable and illogical for
the plaintiff to expect that the first defendant knew, prior to the presentation of the affidavit by the third defendant at its premises, of an
investigation on the plaintiff on F suspicion that he was dealing in precious stones, adding that such information only came to the first
defendant's notice upon the receipt of the affidavit from the third defendant on or about 29 October 1996, so that the first defendant was not
in a position to make the unlikely conclusion that the fluctuations in the plaintiff's bank balance due to a bank employee tampering with the
plaintiff's account and the subsequent deposits to rectify the G situation had resulted in the plaintiff being investigated for dealing in precious
stones, as the same were two mutually independent occurrences. It is then the submission for the first defendant that the plaintiff has no
cause of action against the first defendant, as the first defendant, was in no way responsible for the plaintiff's subsequent investigation, arrest
and detention or for the emotional stress that the plaintiff alleges he suffered as H a result, adding that the arrest of the plaintiff was not at
the instigation of the first defendant but was based upon a valid warrant of arrest, so that the first defendant is not liable for damages for the
arrest which was properly effected by legitimate authorities.
In response, it has been argued for the plaintiff, inter alia, that at all material times hereto the plaintiff maintained a savings account with first

2001 (2) BLR p344

MWAIKASU J
defendant, at Selebi Phikwe Branch. In 1996 first defendant debited plaintiff's account aforesaid without lawful A authority and without
plaintiff's knowledge to a total amount of P6,000.00. Upon plaintiff's complaint about such error, the first defendant rectified the same by
crediting plaintiff's account.
On 30 October 1996, members of the Botswana police are said to have suspected that diamond proceeds had been deposited into plaintiff's
account whereupon they obtained a court order in terms of section 250 of the B Criminal Procedure and Evidence Act (Cap. 08:02) for the
inspection of plaintiff's account and documents relating thereto.
At the inspection of the plaintiff's account by the police and when the first defendant produced documents relating to the plaintiff's account,
first defendant's employees kept quiet about the huge sum of money (which, however, is not disclosed) that had been credited to the plaintiff's
account by the first defendant. The plaintiff was C then subsequently arrested and detained by the Botswana police.
It is then further the argument for the plaintiff that the plaintiff's claim against the first defendant is for damages arising from the first
defendant's negligence, particularly in omitting to disclose to the police investigation team D that the huge amount credited to the plaintiff's
account was the act of the first defendant and had nothing to do with diamond proceeds.
On the duty of confidentiality that a banker owes to a customer, it is the argument for the plaintiff that the same is not absolute, but it is
subject to the following qualifications (which are not exhaustive) to wit:
(a) that a banker may disclose information pertaining to a customer's account under compulsion of law; E

(b) that a banker may also make disclosure where there is a duty to the public to disclose;
(c) that disclosure may be made where the interest of the bank so require;
(d) Juta
© 2018 that disclosure
and Company may be made at the express or implied consent of the Downloaded
(Pty) Ltd. customer. F : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)
See the case of Tournier v. National Provincial & Union Bank of England (supra), also cited by the learned counsel for the first defendant.
 detention of the plaintiff that can properly

2001 (2) BLR p343

MWAIKASU J
be described as a tortuous liability. That said, I now proceed to consider the submissions by the learned counsel A for both sides on the
subject.
Starting with the arguments for the first defendant, learned counsel for the first defendant has argued, inter alia, that the first defendant as
the plaintiff's banker was in law, under a legal duty to observe banker­customer confidentiality not to make any disclosure of information to the
second (correctly third) defendant regarding the plaintiff's accounts, as the plaintiff had not at any time authorized the first defendant to make
any disclosure of B information regarding his accounts to the second or third defendant. He argued further that for the first defendant to
unilaterally disclose such information without the knowledge and express consent of the plaintiff would have been a breach of the first
defendant's duty to the plaintiff to maintain confidentiality of the plaintiff's accounts, citing the case of Tournier v. National Provincial and
Union Bank of England [1924] 1 K.B. 461. C
Counsel for the first defendant has further argued that the first defendant was bound, in law, to allow the inspection of ledger books and
cashbooks regarding the plaintiff's accounts in terms of the affidavit presented to it by the third defendant on or about 29 October 1999, adding
that the first defendant, being legally bound to observe banker­customer confidentiality, was not in a position to disclose any further
information to the third D defendant concerning the plaintiff's account, save that which was ordered in the affidavit without the plaintiff's own
consent. It is then the submission of the learned counsel that first defendant's conduct was not wrongful, citing section 250 of the Criminal
Procedure and Evidence Act (Cap. 08:02); Tournier's case (supra) at 483; Williams v. Summerfield [1972] 2 Q.B. 512. E
It is further the contention for the first defendant that the first defendant did not negligently or deliberately fail to inform the second (third)
defendant of the circumstances surrounding the various adjustments of plaintiff's bank balance, because, first, it is unreasonable and illogical for
the plaintiff to expect that the first defendant knew, prior to the presentation of the affidavit by the third defendant at its premises, of an
investigation on the plaintiff on F suspicion that he was dealing in precious stones, adding that such information only came to the first
defendant's notice upon the receipt of the affidavit from the third defendant on or about 29 October 1996, so that the first defendant was not
in a position to make the unlikely conclusion that the fluctuations in the plaintiff's bank balance due to a bank employee tampering with the
plaintiff's account and the subsequent deposits to rectify the G situation had resulted in the plaintiff being investigated for dealing in precious
stones, as the same were two mutually independent occurrences. It is then the submission for the first defendant that the plaintiff has no
cause of action against the first defendant, as the first defendant, was in no way responsible for the plaintiff's subsequent investigation, arrest
and detention or for the emotional stress that the plaintiff alleges he suffered as H a result, adding that the arrest of the plaintiff was not at
the instigation of the first defendant but was based upon a valid warrant of arrest, so that the first defendant is not liable for damages for the
arrest which was properly effected by legitimate authorities.
In response, it has been argued for the plaintiff, inter alia, that at all material times hereto the plaintiff maintained a savings account with first

2001 (2) BLR p344

MWAIKASU J
defendant, at Selebi Phikwe Branch. In 1996 first defendant debited plaintiff's account aforesaid without lawful A authority and without
plaintiff's knowledge to a total amount of P6,000.00. Upon plaintiff's complaint about such error, the first defendant rectified the same by
crediting plaintiff's account.
On 30 October 1996, members of the Botswana police are said to have suspected that diamond proceeds had been deposited into plaintiff's
account whereupon they obtained a court order in terms of section 250 of the B Criminal Procedure and Evidence Act (Cap. 08:02) for the
inspection of plaintiff's account and documents relating thereto.
At the inspection of the plaintiff's account by the police and when the first defendant produced documents relating to the plaintiff's account,
first defendant's employees kept quiet about the huge sum of money (which, however, is not disclosed) that had been credited to the plaintiff's
account by the first defendant. The plaintiff was C then subsequently arrested and detained by the Botswana police.
It is then further the argument for the plaintiff that the plaintiff's claim against the first defendant is for damages arising from the first
defendant's negligence, particularly in omitting to disclose to the police investigation team D that the huge amount credited to the plaintiff's
account was the act of the first defendant and had nothing to do with diamond proceeds.
On the duty of confidentiality that a banker owes to a customer, it is the argument for the plaintiff that the same is not absolute, but it is
subject to the following qualifications (which are not exhaustive) to wit:
(a) that a banker may disclose information pertaining to a customer's account under compulsion of law; E

(b) that a banker may also make disclosure where there is a duty to the public to disclose;
(c) that disclosure may be made where the interest of the bank so require;
(d) that disclosure may be made at the express or implied consent of the customer. F

See the case of Tournier v. National Provincial & Union Bank of England (supra), also cited by the learned counsel for the first defendant.
It is then the submission for the plaintiff that under qualification (a) above the first defendant was enjoined to disclose to the third defendant
the act that it had credited plaintiff's account in the amount of P6,000.00; more so G because the first defendant knew that the third
defendant suspected that diamond proceeds had been deposited into plaintiff's account, adding that the court order made under section 250 of
the Criminal Procedure and Evidence Act (Cap. 08:02) ordered the first defendant "to produce all relevant information and documents relating to
account of one Emmanuel David", the plaintiff. It is then the submission for the plaintiff that the court H order relieved the first defendant of
any duty of confidentiality respecting plaintiff's account.
Now upon careful examination and consideration of the pleadings, as appear from the plaintiff's declaration in its original form and as amended,
further particulars furnished by the plaintiff upon request by the first defendant

2001 (2) BLR p345

MWAIKASU J
and pleas by the first defendant, together with the submissions of counsel for both the plaintiff and the A first respondent respecting the
exception taken by the first defendant, it is common cause that at the material time when this dispute arose the plaintiff was a customer of the
first defendant, in the banking business, holding a Savings Account No. 5146801 (old), and No. 554210 (new) which on 28 February 1996, is
said to have had a B balance of P10,462.76, but on 21 May 1996, the balance had been reduced to P5,962.76 due to wrongful debiting of such
plaintiff's account by the first defendant or his agent(s). It was then upon the plaintiff's complaints that on or about 27 May 1996, the first
defendant credited a total sum of P6,000.00 to the plaintiff's aforementioned savings account to rectify the amount that had been wrongfully
debited to such account by the first defendant.
It is also common cause that on 29 October 1996, the third defendant swore an affidavit by which he sought an C order of the court in
accordance with the provisions of section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02) to authorize him to inspect the
accounts of the plaintiff held with the first defendant bank at Selebi Phikwe Branch, upon entertaining a suspicion that diamond proceeds had
been deposited into Barclays Bank, D the first defendant, so as to facilitate the third defendant's investigation. It is also common cause that on
30 October 1996, the third defendant obtained the requisite court order that enabled him to carry out the investigation, in the course of which
and pursuant to such order he managed to procure all the books of accounts and other documents pertaining to the plaintiff's savings account
held with the first defendant, as permissible under section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02). E
It is, perhaps, opportune, at this juncture, that the contents of both the third defendant's affidavit and the court order issued thereof be
reproduced for ease of reference. The third defendant's affidavit runs thus:
"I the undersigned, DETECTIVE SERGEANT MANEWE, O. No. 6657 of Botswana Police Force, do here make oath and F say: This office is making some
investigations
© 2018 Juta and Company whereby diamonds proceeds were deposited into Barclays Bank. InDownloaded
(Pty) Ltd. order to facilitate
: Monour
Marinvestigations it is necessary
18 2024 07:53:22 GMT+0200 to inspect ledgerStandard
(South Africa books, Time)
cash books regarding the accounts of EMMANUEL DAVID.
 In response, it has been argued for the plaintiff, inter alia, that at all material times hereto the plaintiff maintained a savings account with first

2001 (2) BLR p344

MWAIKASU J
defendant, at Selebi Phikwe Branch. In 1996 first defendant debited plaintiff's account aforesaid without lawful A authority and without
plaintiff's knowledge to a total amount of P6,000.00. Upon plaintiff's complaint about such error, the first defendant rectified the same by
crediting plaintiff's account.
On 30 October 1996, members of the Botswana police are said to have suspected that diamond proceeds had been deposited into plaintiff's
account whereupon they obtained a court order in terms of section 250 of the B Criminal Procedure and Evidence Act (Cap. 08:02) for the
inspection of plaintiff's account and documents relating thereto.
At the inspection of the plaintiff's account by the police and when the first defendant produced documents relating to the plaintiff's account,
first defendant's employees kept quiet about the huge sum of money (which, however, is not disclosed) that had been credited to the plaintiff's
account by the first defendant. The plaintiff was C then subsequently arrested and detained by the Botswana police.
It is then further the argument for the plaintiff that the plaintiff's claim against the first defendant is for damages arising from the first
defendant's negligence, particularly in omitting to disclose to the police investigation team D that the huge amount credited to the plaintiff's
account was the act of the first defendant and had nothing to do with diamond proceeds.
On the duty of confidentiality that a banker owes to a customer, it is the argument for the plaintiff that the same is not absolute, but it is
subject to the following qualifications (which are not exhaustive) to wit:
(a) that a banker may disclose information pertaining to a customer's account under compulsion of law; E

(b) that a banker may also make disclosure where there is a duty to the public to disclose;
(c) that disclosure may be made where the interest of the bank so require;
(d) that disclosure may be made at the express or implied consent of the customer. F

See the case of Tournier v. National Provincial & Union Bank of England (supra), also cited by the learned counsel for the first defendant.
It is then the submission for the plaintiff that under qualification (a) above the first defendant was enjoined to disclose to the third defendant
the act that it had credited plaintiff's account in the amount of P6,000.00; more so G because the first defendant knew that the third
defendant suspected that diamond proceeds had been deposited into plaintiff's account, adding that the court order made under section 250 of
the Criminal Procedure and Evidence Act (Cap. 08:02) ordered the first defendant "to produce all relevant information and documents relating to
account of one Emmanuel David", the plaintiff. It is then the submission for the plaintiff that the court H order relieved the first defendant of
any duty of confidentiality respecting plaintiff's account.
Now upon careful examination and consideration of the pleadings, as appear from the plaintiff's declaration in its original form and as amended,
further particulars furnished by the plaintiff upon request by the first defendant

2001 (2) BLR p345

MWAIKASU J
and pleas by the first defendant, together with the submissions of counsel for both the plaintiff and the A first respondent respecting the
exception taken by the first defendant, it is common cause that at the material time when this dispute arose the plaintiff was a customer of the
first defendant, in the banking business, holding a Savings Account No. 5146801 (old), and No. 554210 (new) which on 28 February 1996, is
said to have had a B balance of P10,462.76, but on 21 May 1996, the balance had been reduced to P5,962.76 due to wrongful debiting of such
plaintiff's account by the first defendant or his agent(s). It was then upon the plaintiff's complaints that on or about 27 May 1996, the first
defendant credited a total sum of P6,000.00 to the plaintiff's aforementioned savings account to rectify the amount that had been wrongfully
debited to such account by the first defendant.
It is also common cause that on 29 October 1996, the third defendant swore an affidavit by which he sought an C order of the court in
accordance with the provisions of section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02) to authorize him to inspect the
accounts of the plaintiff held with the first defendant bank at Selebi Phikwe Branch, upon entertaining a suspicion that diamond proceeds had
been deposited into Barclays Bank, D the first defendant, so as to facilitate the third defendant's investigation. It is also common cause that on
30 October 1996, the third defendant obtained the requisite court order that enabled him to carry out the investigation, in the course of which
and pursuant to such order he managed to procure all the books of accounts and other documents pertaining to the plaintiff's savings account
held with the first defendant, as permissible under section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02). E
It is, perhaps, opportune, at this juncture, that the contents of both the third defendant's affidavit and the court order issued thereof be
reproduced for ease of reference. The third defendant's affidavit runs thus:
"I the undersigned, DETECTIVE SERGEANT MANEWE, O. No. 6657 of Botswana Police Force, do here make oath and F say: This office is making some
investigations whereby diamonds proceeds were deposited into Barclays Bank. In order to facilitate our investigations it is necessary to inspect ledger books,
cash books regarding the accounts of EMMANUEL DAVID.
I therefore pray this Honourable Court to order Barclays Bank under the Criminal Procedure and Evidence Act section G 250(1)(a) and (b);
(a) To inspect all those books, days, cash books and other accounts books and other accounts devices carrying written records and make and retain in his
possession copies or other records of any entries therein or extracted therefrom, and
(b) To have access to all those other accounting devices carrying unwritten records and retrieve therefrom any H information and make, retain in his
possession a written or other records of information."

And the court order that was granted pursuant to such affidavit is in the following terms:

2001 (2) BLR p346

MWAIKASU J
'The Manager, A
Barclays Bank,
P. O. Box 338,
SELEBI PHIKWE
[Telephone: 810338]
It is hereby ordered as prayed under the Criminal Procedure and Evidence Act Cap. 08:02 of Botswana Laws section 250(1)(a) and (b) of the Criminal
Procedure and Evidence Act to produce all relevant information and document relating to B account of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
SERGEANT MANEWE, O, of Botswana Police." [Emphasis supplied.]

And what does the law say? Section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) C of the Laws of Botswana is
in the following terms:
"250.(1) Where, an application made on oath by a policeman, a magistrate or justice who is not a member of the Botswana Police Force is satisfied that the
policeman believes there are reasonable grounds to suppose that the ledgers, day­books, D cash books or other account books or other accounting devices
used by a bank (including a savings bank) may afford evidence as to the commission of any offence, the magistrate or justice may issue his warrant authorizing
the policeman or policemen named therein ­
(a) to inspect all those ledgers, day­books, cash books and other account books and other accounting devices carrying E written records and make and
retain in his or their possessions copies or other record of any entries therein or extracted therefrom; and
(b) to have access to all those other accounting devices carrying unwritten records and retrieve therefrom any information and make and retain in his or
their possession a written or other record of that information." (Emphasis F supplied.)

What comes out clearly from the above quotations is that the affidavit sworn to by the third defendant for the purpose of obtaining a court
order for the inspection of the specified bank books of accounts in respect of the account held by the plaintiff, one Emmanuel David, followed
very closely the provisions of section 250(1)(a) and G (b) of the Criminal Procedure and Evidence Act (Cap. 08:02). It is also evident from the
provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act that what was expected of the bank, the first defendant,
wasJuta
© 2018 to make available
and Company toLtd.
(Pty) the police for inspection all the books of accountDownloaded
specified therein and18permit
: Mon Mar the police
2024 07:53:22 to make
GMT+0200 copies
(South ofStandard
Africa any suchTime)
documents; to allow the police have access to all other accounting H devices carrying unwritten records and allow them to retrieve therefrom
 further particulars furnished by the plaintiff upon request by the first defendant

2001 (2) BLR p345

MWAIKASU J
and pleas by the first defendant, together with the submissions of counsel for both the plaintiff and the A first respondent respecting the
exception taken by the first defendant, it is common cause that at the material time when this dispute arose the plaintiff was a customer of the
first defendant, in the banking business, holding a Savings Account No. 5146801 (old), and No. 554210 (new) which on 28 February 1996, is
said to have had a B balance of P10,462.76, but on 21 May 1996, the balance had been reduced to P5,962.76 due to wrongful debiting of such
plaintiff's account by the first defendant or his agent(s). It was then upon the plaintiff's complaints that on or about 27 May 1996, the first
defendant credited a total sum of P6,000.00 to the plaintiff's aforementioned savings account to rectify the amount that had been wrongfully
debited to such account by the first defendant.
It is also common cause that on 29 October 1996, the third defendant swore an affidavit by which he sought an C order of the court in
accordance with the provisions of section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02) to authorize him to inspect the
accounts of the plaintiff held with the first defendant bank at Selebi Phikwe Branch, upon entertaining a suspicion that diamond proceeds had
been deposited into Barclays Bank, D the first defendant, so as to facilitate the third defendant's investigation. It is also common cause that on
30 October 1996, the third defendant obtained the requisite court order that enabled him to carry out the investigation, in the course of which
and pursuant to such order he managed to procure all the books of accounts and other documents pertaining to the plaintiff's savings account
held with the first defendant, as permissible under section 250 of the Criminal Procedure and Evidence Act (Cap. 08:02). E
It is, perhaps, opportune, at this juncture, that the contents of both the third defendant's affidavit and the court order issued thereof be
reproduced for ease of reference. The third defendant's affidavit runs thus:
"I the undersigned, DETECTIVE SERGEANT MANEWE, O. No. 6657 of Botswana Police Force, do here make oath and F say: This office is making some
investigations whereby diamonds proceeds were deposited into Barclays Bank. In order to facilitate our investigations it is necessary to inspect ledger books,
cash books regarding the accounts of EMMANUEL DAVID.
I therefore pray this Honourable Court to order Barclays Bank under the Criminal Procedure and Evidence Act section G 250(1)(a) and (b);
(a) To inspect all those books, days, cash books and other accounts books and other accounts devices carrying written records and make and retain in his
possession copies or other records of any entries therein or extracted therefrom, and
(b) To have access to all those other accounting devices carrying unwritten records and retrieve therefrom any H information and make, retain in his
possession a written or other records of information."

And the court order that was granted pursuant to such affidavit is in the following terms:

2001 (2) BLR p346

MWAIKASU J
'The Manager, A
Barclays Bank,
P. O. Box 338,
SELEBI PHIKWE
[Telephone: 810338]
It is hereby ordered as prayed under the Criminal Procedure and Evidence Act Cap. 08:02 of Botswana Laws section 250(1)(a) and (b) of the Criminal
Procedure and Evidence Act to produce all relevant information and document relating to B account of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
SERGEANT MANEWE, O, of Botswana Police." [Emphasis supplied.]

And what does the law say? Section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) C of the Laws of Botswana is
in the following terms:
"250.(1) Where, an application made on oath by a policeman, a magistrate or justice who is not a member of the Botswana Police Force is satisfied that the
policeman believes there are reasonable grounds to suppose that the ledgers, day­books, D cash books or other account books or other accounting devices
used by a bank (including a savings bank) may afford evidence as to the commission of any offence, the magistrate or justice may issue his warrant authorizing
the policeman or policemen named therein ­
(a) to inspect all those ledgers, day­books, cash books and other account books and other accounting devices carrying E written records and make and
retain in his or their possessions copies or other record of any entries therein or extracted therefrom; and
(b) to have access to all those other accounting devices carrying unwritten records and retrieve therefrom any information and make and retain in his or
their possession a written or other record of that information." (Emphasis F supplied.)

What comes out clearly from the above quotations is that the affidavit sworn to by the third defendant for the purpose of obtaining a court
order for the inspection of the specified bank books of accounts in respect of the account held by the plaintiff, one Emmanuel David, followed
very closely the provisions of section 250(1)(a) and G (b) of the Criminal Procedure and Evidence Act (Cap. 08:02). It is also evident from the
provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act that what was expected of the bank, the first defendant,
was to make available to the police for inspection all the books of account specified therein and permit the police to make copies of any such
documents; to allow the police have access to all other accounting H devices carrying unwritten records and allow them to retrieve therefrom
any information and retain it for their use. It is certainly not the duty of the bank under the law to provide or disclose any information to the
police relating to a customer's accounts, concerning, for example, the sources of the deposits made in the client's account. That would be the
duty of the police to verify with the holder of the accounts

2001 (2) BLR p347

MWAIKASU J
investigated. That, in fact, has emphatically been conceded by the plaintiff as per para. 5.5 of his further A particulars, where he had this to
say:
"5.5. 1st Defendant had no right to know where the money came from . . . nor disclose to anybody that Plaintiff has so much money in his account.
5.6 Plaintiff pleads that 1st Defendant was not supposed to disclose information on the basis of an order that was B obtained by fraudulent means."

It is also to be pointed out that nowhere has the plaintiff averred as to what led the third defendant to suspect that diamond proceeds had
been deposited in Barclays Bank, the first defendant, and to inspect his accounts. Thus C any suggestion that the adjustment made by the first
defendant by crediting to the plaintiff's account the sum of P6,000.00, which had earlier been wrongly debited to such account, was what led
the police to entertain the suspicion that diamond proceeds had been deposited into the Barclays Bank, Selebi Phikwe Branch, to the plaintiff's
account, is mere speculation and cannot be accepted by this court. As observed above, even if it was to the first defendant's knowledge that
it was such adjustments made by the bank that led the third defendant to D suspect that such credit entries made by the first defendant to
the plaintiff's account was what led the police to suspect to have been diamonds proceeds, that could not, in law, place a duty upon the first
defendant to disclose to the third defendant as to the sources of such credits made, unless the first defendant had been so authorized by the
plaintiff. E
It is true, as rightly argued by the learned counsel for the plaintiff, that according to the court's order referred to above, the first defendant
was ordered "to produce all relevant information and documents relating to the account of one Emmanuel David", the plaintiff. That, in my view,
was ultra vires the provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act, to the extent it required the first
defendant to F produce "relevant information" relating to the plaintiff's accounts. And being fully knowledgeable of the provisions of section
250(1)(a) and (b) of the Criminal Procedure and Evidence Act, upon noting that the court order was in contravention of the provisions of the
relevant section of the Criminal Procedure and Evidence Act, the first defendant was, in my view, entitled to desist from complying with the
letter of such court order. For the legal G force of any court order is derived not only from the fact that it has been made by an officer
competent to do so, but also that it proceeds from or is based upon a correct application or enforcement of the provisions of the relevant or
applicable law of the land. And that is the essence of rule of law. Even if I be wrong on such view, whatever information the first defendant was
to produce to the third defendant it was one at the instance or H request by the third defendant and not at its own initiative. Yet it has not
been shown that the third defendant demanded such information from the first defendant.
Now turning to the authorities cited before this court, of such authorities I find the case of Tournier v. National Provincial and Union Bank of
England,
© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)
 And the court order that was granted pursuant to such affidavit is in the following terms:

2001 (2) BLR p346

MWAIKASU J
'The Manager, A
Barclays Bank,
P. O. Box 338,
SELEBI PHIKWE
[Telephone: 810338]
It is hereby ordered as prayed under the Criminal Procedure and Evidence Act Cap. 08:02 of Botswana Laws section 250(1)(a) and (b) of the Criminal
Procedure and Evidence Act to produce all relevant information and document relating to B account of the following: EMMANUEL DAVID to No. 6654 DETECTIVE
SERGEANT MANEWE, O, of Botswana Police." [Emphasis supplied.]

And what does the law say? Section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) C of the Laws of Botswana is
in the following terms:
"250.(1) Where, an application made on oath by a policeman, a magistrate or justice who is not a member of the Botswana Police Force is satisfied that the
policeman believes there are reasonable grounds to suppose that the ledgers, day­books, D cash books or other account books or other accounting devices
used by a bank (including a savings bank) may afford evidence as to the commission of any offence, the magistrate or justice may issue his warrant authorizing
the policeman or policemen named therein ­
(a) to inspect all those ledgers, day­books, cash books and other account books and other accounting devices carrying E written records and make and
retain in his or their possessions copies or other record of any entries therein or extracted therefrom; and
(b) to have access to all those other accounting devices carrying unwritten records and retrieve therefrom any information and make and retain in his or
their possession a written or other record of that information." (Emphasis F supplied.)

What comes out clearly from the above quotations is that the affidavit sworn to by the third defendant for the purpose of obtaining a court
order for the inspection of the specified bank books of accounts in respect of the account held by the plaintiff, one Emmanuel David, followed
very closely the provisions of section 250(1)(a) and G (b) of the Criminal Procedure and Evidence Act (Cap. 08:02). It is also evident from the
provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act that what was expected of the bank, the first defendant,
was to make available to the police for inspection all the books of account specified therein and permit the police to make copies of any such
documents; to allow the police have access to all other accounting H devices carrying unwritten records and allow them to retrieve therefrom
any information and retain it for their use. It is certainly not the duty of the bank under the law to provide or disclose any information to the
police relating to a customer's accounts, concerning, for example, the sources of the deposits made in the client's account. That would be the
duty of the police to verify with the holder of the accounts

2001 (2) BLR p347

MWAIKASU J
investigated. That, in fact, has emphatically been conceded by the plaintiff as per para. 5.5 of his further A particulars, where he had this to
say:
"5.5. 1st Defendant had no right to know where the money came from . . . nor disclose to anybody that Plaintiff has so much money in his account.
5.6 Plaintiff pleads that 1st Defendant was not supposed to disclose information on the basis of an order that was B obtained by fraudulent means."

It is also to be pointed out that nowhere has the plaintiff averred as to what led the third defendant to suspect that diamond proceeds had
been deposited in Barclays Bank, the first defendant, and to inspect his accounts. Thus C any suggestion that the adjustment made by the first
defendant by crediting to the plaintiff's account the sum of P6,000.00, which had earlier been wrongly debited to such account, was what led
the police to entertain the suspicion that diamond proceeds had been deposited into the Barclays Bank, Selebi Phikwe Branch, to the plaintiff's
account, is mere speculation and cannot be accepted by this court. As observed above, even if it was to the first defendant's knowledge that
it was such adjustments made by the bank that led the third defendant to D suspect that such credit entries made by the first defendant to
the plaintiff's account was what led the police to suspect to have been diamonds proceeds, that could not, in law, place a duty upon the first
defendant to disclose to the third defendant as to the sources of such credits made, unless the first defendant had been so authorized by the
plaintiff. E
It is true, as rightly argued by the learned counsel for the plaintiff, that according to the court's order referred to above, the first defendant
was ordered "to produce all relevant information and documents relating to the account of one Emmanuel David", the plaintiff. That, in my view,
was ultra vires the provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act, to the extent it required the first
defendant to F produce "relevant information" relating to the plaintiff's accounts. And being fully knowledgeable of the provisions of section
250(1)(a) and (b) of the Criminal Procedure and Evidence Act, upon noting that the court order was in contravention of the provisions of the
relevant section of the Criminal Procedure and Evidence Act, the first defendant was, in my view, entitled to desist from complying with the
letter of such court order. For the legal G force of any court order is derived not only from the fact that it has been made by an officer
competent to do so, but also that it proceeds from or is based upon a correct application or enforcement of the provisions of the relevant or
applicable law of the land. And that is the essence of rule of law. Even if I be wrong on such view, whatever information the first defendant was
to produce to the third defendant it was one at the instance or H request by the third defendant and not at its own initiative. Yet it has not
been shown that the third defendant demanded such information from the first defendant.
Now turning to the authorities cited before this court, of such authorities I find the case of Tournier v. National Provincial and Union Bank of
England,

2001 (2) BLR p348

MWAIKASU J
supra, to be the most instructive on the issue of confidentiality as one of the marked duties of a bank to a A customer.
In that case the plaintiff had an account with the defendant bank. His account was overdrawn. He entered into an agreement with the bank to
clear the overdraft but he defaulted. The bank manager telephoned the plaintiff's employer to find out the plaintiff's address. In the course of
the conversation, he disclosed that the plaintiff's account was overdrawn and that he was in breach of the agreement to clear his overdraft. He
further disclosed B that the plaintiff had dealings with bookmakers and was betting heavily. The plaintiff consequently lost his job. He then sued
the bank for slander and for breach of an implied contract not to disclose the state of his account or transactions. The trial judge held in favour
of the defendants. The plaintiff appealed asking for a new trial on the ground of misdirection by the trial judge. C
In allowing the appeal and ordering a retrial, the Court of Appeal had this to say (per Bankes, L.J.) among other things;
". . . At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not obsolute but
qualified. It is not possible to frame an exhaustive definition of the duty. The most that can D be done is to classify the qualification, and to indicate its limits. . . .
In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy,
implied in the relation of banker and customer. . . . On principle I think that the qualifications can be classified under four heads: (a) E where disclosure is under
compulsion by law. (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by
express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers' Books Evidence Act. Many instances of
the second class might be given. They may be summed up in the language of Lord Finlay in Weld­Blundell V Stephens [1920] F A.C. 956, 965], where he speaks
of a case where a higher duty than the private duty is involved, as where 'danger to the State or public duty may supersede the duty of the agent to principal'. A
simple instance of the third class is where a banker issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the draft. The
familiar instance of the last class is where the customer authorizes a reference to his banker. It is more difficult to state what the G limits of the duty are, either
as to time or as to the nature of the disclosure. I certainly think that the duty does not cease the moment a customer closes his account. Information gained
during the currency of the account remains confidential unless released under circumstances bringing the case within one of the classes of qualification I have
already H referred to. Again the confidence is not confined to the actual state of the customer's account. It extends to information derived from the account
itself. . . . The case of the banker and his customer appear to me to be one in which the confidential relationship between the parties is very marked. The credit
of the customer depends very largely upon the strict observance of that confidence. I cannot think that the duty of non­disclosure

2001 (2) BLR p349

is confined to information derived from the customer himself or from his account. In the present case I think that the A information obtained by Mr Fenwell as
the result of his inquiry of the London City and Midland Bank was covered by the privilege of the customer, and that the bank are liable for any disclosure of that
information
© 2018 Juta which(Pty)
and Company mayLtd.
have caused damages to the plaintiff unless the bank canDownloaded
bring the disclosure of the
: Mon Mar 18information so derived
2024 07:53:22 under(South
GMT+0200 one ofAfrica
the classified
Standard Time)
qualification I have already referred to." [Emphasis supplied.] B
 duty of the police to verify with the holder of the accounts

2001 (2) BLR p347

MWAIKASU J
investigated. That, in fact, has emphatically been conceded by the plaintiff as per para. 5.5 of his further A particulars, where he had this to
say:
"5.5. 1st Defendant had no right to know where the money came from . . . nor disclose to anybody that Plaintiff has so much money in his account.
5.6 Plaintiff pleads that 1st Defendant was not supposed to disclose information on the basis of an order that was B obtained by fraudulent means."

It is also to be pointed out that nowhere has the plaintiff averred as to what led the third defendant to suspect that diamond proceeds had
been deposited in Barclays Bank, the first defendant, and to inspect his accounts. Thus C any suggestion that the adjustment made by the first
defendant by crediting to the plaintiff's account the sum of P6,000.00, which had earlier been wrongly debited to such account, was what led
the police to entertain the suspicion that diamond proceeds had been deposited into the Barclays Bank, Selebi Phikwe Branch, to the plaintiff's
account, is mere speculation and cannot be accepted by this court. As observed above, even if it was to the first defendant's knowledge that
it was such adjustments made by the bank that led the third defendant to D suspect that such credit entries made by the first defendant to
the plaintiff's account was what led the police to suspect to have been diamonds proceeds, that could not, in law, place a duty upon the first
defendant to disclose to the third defendant as to the sources of such credits made, unless the first defendant had been so authorized by the
plaintiff. E
It is true, as rightly argued by the learned counsel for the plaintiff, that according to the court's order referred to above, the first defendant
was ordered "to produce all relevant information and documents relating to the account of one Emmanuel David", the plaintiff. That, in my view,
was ultra vires the provisions of section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act, to the extent it required the first
defendant to F produce "relevant information" relating to the plaintiff's accounts. And being fully knowledgeable of the provisions of section
250(1)(a) and (b) of the Criminal Procedure and Evidence Act, upon noting that the court order was in contravention of the provisions of the
relevant section of the Criminal Procedure and Evidence Act, the first defendant was, in my view, entitled to desist from complying with the
letter of such court order. For the legal G force of any court order is derived not only from the fact that it has been made by an officer
competent to do so, but also that it proceeds from or is based upon a correct application or enforcement of the provisions of the relevant or
applicable law of the land. And that is the essence of rule of law. Even if I be wrong on such view, whatever information the first defendant was
to produce to the third defendant it was one at the instance or H request by the third defendant and not at its own initiative. Yet it has not
been shown that the third defendant demanded such information from the first defendant.
Now turning to the authorities cited before this court, of such authorities I find the case of Tournier v. National Provincial and Union Bank of
England,

2001 (2) BLR p348

MWAIKASU J
supra, to be the most instructive on the issue of confidentiality as one of the marked duties of a bank to a A customer.
In that case the plaintiff had an account with the defendant bank. His account was overdrawn. He entered into an agreement with the bank to
clear the overdraft but he defaulted. The bank manager telephoned the plaintiff's employer to find out the plaintiff's address. In the course of
the conversation, he disclosed that the plaintiff's account was overdrawn and that he was in breach of the agreement to clear his overdraft. He
further disclosed B that the plaintiff had dealings with bookmakers and was betting heavily. The plaintiff consequently lost his job. He then sued
the bank for slander and for breach of an implied contract not to disclose the state of his account or transactions. The trial judge held in favour
of the defendants. The plaintiff appealed asking for a new trial on the ground of misdirection by the trial judge. C
In allowing the appeal and ordering a retrial, the Court of Appeal had this to say (per Bankes, L.J.) among other things;
". . . At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not obsolute but
qualified. It is not possible to frame an exhaustive definition of the duty. The most that can D be done is to classify the qualification, and to indicate its limits. . . .
In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy,
implied in the relation of banker and customer. . . . On principle I think that the qualifications can be classified under four heads: (a) E where disclosure is under
compulsion by law. (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by
express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers' Books Evidence Act. Many instances of
the second class might be given. They may be summed up in the language of Lord Finlay in Weld­Blundell V Stephens [1920] F A.C. 956, 965], where he speaks
of a case where a higher duty than the private duty is involved, as where 'danger to the State or public duty may supersede the duty of the agent to principal'. A
simple instance of the third class is where a banker issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the draft. The
familiar instance of the last class is where the customer authorizes a reference to his banker. It is more difficult to state what the G limits of the duty are, either
as to time or as to the nature of the disclosure. I certainly think that the duty does not cease the moment a customer closes his account. Information gained
during the currency of the account remains confidential unless released under circumstances bringing the case within one of the classes of qualification I have
already H referred to. Again the confidence is not confined to the actual state of the customer's account. It extends to information derived from the account
itself. . . . The case of the banker and his customer appear to me to be one in which the confidential relationship between the parties is very marked. The credit
of the customer depends very largely upon the strict observance of that confidence. I cannot think that the duty of non­disclosure

2001 (2) BLR p349

is confined to information derived from the customer himself or from his account. In the present case I think that the A information obtained by Mr Fenwell as
the result of his inquiry of the London City and Midland Bank was covered by the privilege of the customer, and that the bank are liable for any disclosure of that
information which may have caused damages to the plaintiff unless the bank can bring the disclosure of the information so derived under one of the classified
qualification I have already referred to." [Emphasis supplied.] B

The above statement of his Lordship does, in my view, sufficiently demonstrate the seriousness attached to the contractual legal duty of
confidentiality that a bank has to observe in relation to the accounts of its customer and the circumstances under which such duty may be
waived. C
As observed above, in this case, the first defendant did discharge its duty to surrender the plaintiff's accounts to the third defendant as
required and provided for under section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) of the Laws of Botswana. It
is not the requirement of the law as provided under the above cited section that the bank has to disclose as well the sources of the deposits
credited to the customer's D account. That is the duty of the investigating police officer to find out from the customer whose accounts are
investigated. I do find, therefore, that as regards claim No 2, in the plaintiff's declaration the plaintiff has failed to disclose a cause of action as
against the first defendant. I therefore uphold the first defendant's exception on that claim, with costs.
The plaintiff is at liberty to proceed to trial in respect of claim 1 and 3 of his declaration as amended, on the basis E of the pleadings already
filed with this court, after holding the requisite pre­trial conference.
Exception to plaintiff's second claim
upheld.

2001 (2) BLR p349

F

© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)
 England,

2001 (2) BLR p348

MWAIKASU J
supra, to be the most instructive on the issue of confidentiality as one of the marked duties of a bank to a A customer.
In that case the plaintiff had an account with the defendant bank. His account was overdrawn. He entered into an agreement with the bank to
clear the overdraft but he defaulted. The bank manager telephoned the plaintiff's employer to find out the plaintiff's address. In the course of
the conversation, he disclosed that the plaintiff's account was overdrawn and that he was in breach of the agreement to clear his overdraft. He
further disclosed B that the plaintiff had dealings with bookmakers and was betting heavily. The plaintiff consequently lost his job. He then sued
the bank for slander and for breach of an implied contract not to disclose the state of his account or transactions. The trial judge held in favour
of the defendants. The plaintiff appealed asking for a new trial on the ground of misdirection by the trial judge. C
In allowing the appeal and ordering a retrial, the Court of Appeal had this to say (per Bankes, L.J.) among other things;
". . . At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not obsolute but
qualified. It is not possible to frame an exhaustive definition of the duty. The most that can D be done is to classify the qualification, and to indicate its limits. . . .
In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy,
implied in the relation of banker and customer. . . . On principle I think that the qualifications can be classified under four heads: (a) E where disclosure is under
compulsion by law. (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by
express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers' Books Evidence Act. Many instances of
the second class might be given. They may be summed up in the language of Lord Finlay in Weld­Blundell V Stephens [1920] F A.C. 956, 965], where he speaks
of a case where a higher duty than the private duty is involved, as where 'danger to the State or public duty may supersede the duty of the agent to principal'. A
simple instance of the third class is where a banker issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the draft. The
familiar instance of the last class is where the customer authorizes a reference to his banker. It is more difficult to state what the G limits of the duty are, either
as to time or as to the nature of the disclosure. I certainly think that the duty does not cease the moment a customer closes his account. Information gained
during the currency of the account remains confidential unless released under circumstances bringing the case within one of the classes of qualification I have
already H referred to. Again the confidence is not confined to the actual state of the customer's account. It extends to information derived from the account
itself. . . . The case of the banker and his customer appear to me to be one in which the confidential relationship between the parties is very marked. The credit
of the customer depends very largely upon the strict observance of that confidence. I cannot think that the duty of non­disclosure

2001 (2) BLR p349

is confined to information derived from the customer himself or from his account. In the present case I think that the A information obtained by Mr Fenwell as
the result of his inquiry of the London City and Midland Bank was covered by the privilege of the customer, and that the bank are liable for any disclosure of that
information which may have caused damages to the plaintiff unless the bank can bring the disclosure of the information so derived under one of the classified
qualification I have already referred to." [Emphasis supplied.] B

The above statement of his Lordship does, in my view, sufficiently demonstrate the seriousness attached to the contractual legal duty of
confidentiality that a bank has to observe in relation to the accounts of its customer and the circumstances under which such duty may be
waived. C
As observed above, in this case, the first defendant did discharge its duty to surrender the plaintiff's accounts to the third defendant as
required and provided for under section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) of the Laws of Botswana. It
is not the requirement of the law as provided under the above cited section that the bank has to disclose as well the sources of the deposits
credited to the customer's D account. That is the duty of the investigating police officer to find out from the customer whose accounts are
investigated. I do find, therefore, that as regards claim No 2, in the plaintiff's declaration the plaintiff has failed to disclose a cause of action as
against the first defendant. I therefore uphold the first defendant's exception on that claim, with costs.
The plaintiff is at liberty to proceed to trial in respect of claim 1 and 3 of his declaration as amended, on the basis E of the pleadings already
filed with this court, after holding the requisite pre­trial conference.
Exception to plaintiff's second claim
upheld.

2001 (2) BLR p349

F

© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)
 of the customer depends very largely upon the strict observance of that confidence. I cannot think that the duty of non­disclosure

2001 (2) BLR p349

is confined to information derived from the customer himself or from his account. In the present case I think that the A information obtained by Mr Fenwell as
the result of his inquiry of the London City and Midland Bank was covered by the privilege of the customer, and that the bank are liable for any disclosure of that
information which may have caused damages to the plaintiff unless the bank can bring the disclosure of the information so derived under one of the classified
qualification I have already referred to." [Emphasis supplied.] B

The above statement of his Lordship does, in my view, sufficiently demonstrate the seriousness attached to the contractual legal duty of
confidentiality that a bank has to observe in relation to the accounts of its customer and the circumstances under which such duty may be
waived. C
As observed above, in this case, the first defendant did discharge its duty to surrender the plaintiff's accounts to the third defendant as
required and provided for under section 250(1)(a) and (b) of the Criminal Procedure and Evidence Act (Cap. 08:02) of the Laws of Botswana. It
is not the requirement of the law as provided under the above cited section that the bank has to disclose as well the sources of the deposits
credited to the customer's D account. That is the duty of the investigating police officer to find out from the customer whose accounts are
investigated. I do find, therefore, that as regards claim No 2, in the plaintiff's declaration the plaintiff has failed to disclose a cause of action as
against the first defendant. I therefore uphold the first defendant's exception on that claim, with costs.
The plaintiff is at liberty to proceed to trial in respect of claim 1 and 3 of his declaration as amended, on the basis E of the pleadings already
filed with this court, after holding the requisite pre­trial conference.
Exception to plaintiff's second claim
upheld.

2001 (2) BLR p349

F

© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Mar 18 2024 07:53:22 GMT+0200 (South Africa Standard Time)