THE COURT of Appeal has granted the appeal by the United Bank for Africa (UBA) first defendant in a suit brought against it by a Kumasi business man.
The appeal was granted on condition that UBA pays US$20,000 out of the US$80,565 to the plaintiff/respondent and pay US$60,565 into Court pending the determination of the appeal.
The Appeallate Court, presided over by Mrs. Justice Georgina Mensah-Datsa together with Mrs. Justice Hafisata Amaleboba and Justice Patrick Kwamina Baiden, also ordered that all other amounts ordered by the trial court to be paid including costs are remanded pending determination of the appeal.
A Kumasi High Court presided over by His Lordship Justice Kofi Akrowia on November 8, 2022 entered judgement for the plaintiff, Osei Kwabena, a Kumasi business man in respect of his reliefs.
The court further awarded a general damages of GHc10,000 and cost of GHc20,000 for the plaintiff against the second defendant and GHc15,000 against the bank.
But United Bank of Ghana (UBA) appealed against judgement of a Kumasi High Court against it as the first defendant and one Prince Effah, a former UBA Branch manager, the second defendant.
On March 8, 2023 UBA filed an application for stay of execution of the judgement by the High Court on the grounds that the said judgement was against the weight of evidence and prayed that the Appellate Court reverses the November 8, 2022 judgment.
Osei Kwabena, a Kumasi business man operating Osei Kwabena Trading Enterprise hauled the defendants to the High court (Commercial Division) for allegedly defrauding him (plaintiff customer) of $80,565.
The plaintiff claims, second defendant fraudulently appropriated $80,565 as an employee of the first defendant bank and therefore seeking a declaration of the bank that the dishonest and fraudulent appropriation of $80,565 meant for Continental Commodities in France, is a breach of the defendant bank’s fiduciary obligation to the plaintiff as a customer of its Adum branch.
The writ filed by Kwabena Opoku-Mensah, Esq of the O & A Legal Consult in Kumasi, is also seeking an interest on the alleged misappropriated amount from December 28, 2018 to the date of final payment.
The plaintiff is also seeking an order of the court to compel the bank to reimburse him the sum of €5,000 incurred by the Managing director of Continental Commodities to travel to Ghana to enquire about a purported payment of $80,565 to company’s account.
He prayed the court for a further interest on the €5,000 from April 2019 till the date of final payment.
The plaintiff also want general, special, punitive and exemplary damages against the defendants for their fraudulent and dishonest appropriation of plaintiff’s money for causing him great hardship, pain, anxiety and psychological anguish from the relentless pursuit of him for the payment of $80,565 and €5,000 by the MD of the Continental Commodities.
Meanwhile, UBA per its defence by lawyer Anthony Mmieh of Poku, Nyamaa and Associates in Kumasi, stated the bank cannot be held liable for the actions and inactions of the second defendant, who was bound by the operations policy and control manual of the bank.
It explained that all private arrangement including that between the plaintiff and the second defendant was outside the scope of his mandate as a branch manager.
The second defendant per a statement of defence filed on his behalf by Lawyer Vivian Mfodwaa Gyan, claimed the plaintiff is his long time friend and that he had been assisting the plaintiff in various transactions and deals over 10 years when he was not an employee of the first defendant bank.
According to statement, on December 28, 2018 the plaintiff who had no supporting documents, asked the second defendant to transfer GHc401,770 to his supplier and much aware that he was not channelling the transfer through the UBA.
He said since it was a personal transaction between himself and the plaintiff for lack of proper documentation to support the transfer, he contacted an Indian friend, Francis Doshi to help transfer the amount.
The second defendant indicated that Doshi confirmed receipt of the GHc401,770 on December 31, 2018 but could not transfer it because he did not get back details of the supplier.
According to the second defendant, it was only after Doshi had asked for the details that he realised an error had been caused upon a check in his email.
As a result, he resent the bank details of the supplier to Doshi and assumed Continental Commodities had received the amount, which was not the case.
Following further enquiries, the second defendant realised the transaction had failed because the monies had mistakenly credited to a different account for which efforts were being made to retrieve the funds.
He said the plaintiff and supplier were informed about the development and asked for some space and time to retrieve the monies fro them.
The second defendant also explained that he had paid GHC101,770 to the plaintiff and therefore the cheque the plaintiff was holding onto was no longer valid following which the plaintiff requested for an undertaking for the remaining balance of GHC300,000.
In the circumstance, the second defendant stated that he had not stolen the plaintiff’s money and therefore not fraudulent and contended that the plaintiff is not entitled to all the reliefs he is seeking.
BY Kow Richardson