The UBA Ghana has 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.
Osei Kwabena, a Kumasi based 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 claimed that second defendant fraudulently appropriated $80,565 as an employee of the first defendant bank and, therefore, sought for a declaration 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, was also seeking an interest on the alleged misappropriated amount from December 28, 2018 to the date of final payment.
The plaintiff was 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 the company’s account.
He prayed the court for further interest on the €5,000 from April 2019 till the date of final payment.
The plaintiff also wanted 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.
In a 36-point statement of claim, Osei Kwabena explained that the action was premised on his conviction that it is only the authoritative intervention of the court that can compel the defendants to make good on the theft and save his business from collapse.
Meanwhile, UBA, per its defence as filed 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, also claimed the plaintiff is his long-time friend and that he had been assisting the plaintiff in various transactions and deals for over 10 years, when he was not an employee of the first defendant bank.
According to his 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 been 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 from 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.
The Court, presided over by His Lordship Justice Kofi Akrowia, on November 8, 2022 entered judgement for the plaintiff, Osei Kwabena, a Kumasi based 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 the UBA, on March 8, 2023 filed an application for stay of execution of the judgement by the High Court.
It has thus appealed against the entire judgement of 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.
The first defendant/appellant bank, on April 3, 2023 has filed an additional grounds of appeal in which it stated that the trial Court erred for holding the appellant bank liable for a private transaction between the plaintiff, respondent and the second defendant.
It also contended that the court erred when it failed to consider GHc101,770 that had already been given to the plaintiff by the second defendant.
In a supplementary affidavit in support of the motion on notice for stay of execution, Raymond Warren Dravie, Relationship Officer of UBA, stated that the refusal of the application would cause greater hardships to the first defendant/appellant bank in the face of the amount involved.
Meanwhile, the Court of Appeal sitting on May 3, 2023 has granted the appeal of the first defendant on condition that the first defendant/appellant 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 Appellate Court, presided 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.
