PETER EGYIN MENSAH vs. INTERCONTINENTAL BANK (GH) LIMITED [2009]DLSC2720

Date	2009-11-26
Suit No.	CIVIL APPEAL NO. J4/13/2009
Citation No.	[2009]DLSC2720

DATE-BAH JSC (PRESIDING)

ANSAH JSC

ADINYIRA (MRS.) JSC

OWUSU (MS) JSC

BAFFOE-BONNIE JSC.

VICTOR AZAMETI LED BY DR. L. K. AGBOSU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.

LITHUR BREW & COMPANY FOR THE DEFENDANT/APPELLANT/RESPONDENT

[2009]DLSC2720
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													<main id="main" class="content" style="min-height: 60rem" >PETER EGYIN MENSAH<o:p></o:p>vs.<o:p></o:p>INTERCONTINENTAL BANK (GH) LIMITED<o:p></o:p>[SUPREME
COURT]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL
APPEAL NO.&nbsp; J4/13/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25TH NOVEMBER, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>VICTOR
AZAMETI LED BY DR. L. K. AGBOSU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

LITHUR
BREW &amp; COMPANY FOR THE DEFENDANT/APPELLANT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE-BAH
JSC (PRESIDING), ANSAH JSC, ADINYIRA (MRS.) JSC, OWUSU (MS) JSC, BAFFOE-BONNIE
JSC.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>SOPHIA
ADINYIRA (MRS) JSC:<o:p></o:p>This
an appeal against the Judgment of the Court of Appeal dated 6 November 2008
allowing an appeal against the judgement&nbsp;
of the High Court (Commercial Division) Accra dated 27 July 2007 on the
sole ground of estoppel by res judicata. In order to appreciate fully the
issues raised for determination in this appeal we must look at the history of
the whole litigation.<o:p></o:p>Background<o:p></o:p>The
genesis of this appeal is that the plaintiffs/respondents/ appellants
(hereinafter plaintiffs) are the personal representatives of the late Comfort
Mensah a Susu collector. The deceased in her lifetime operated two Savings
Passbooks with Citi Savings &amp; Loans Co. Ltd. with Account Numbers 3838 and
8541.&nbsp; The Defendant/ appellant
/respondent (hereinafter defendant) changed its name from Citi Savings &amp;
Loans Co. Ltd. to Intercontinental Bank (Ghana) Ltd.&nbsp; The plaintiffs undertook a reconciliation
exercise in respect of the Passbooks A/C No. 3838 and 8541 respectively with
bank statements supplied by the defendant. According to the plaintiffs the reconciliation
disclosed that deposits recorded in the Passbooks did not reflect in the bank
statements. The total amount deposited in the Passbooks which did not reflect
in the bank statement was GH¢50,910.00, as per paragraph 6 of their statement
of claim. They had several meetings with the defendant to reconcile the
passbook entries with the bank statements but could not resolve the issue among
themselves. The plaintiff therefore issued a writ with suit no. BFS/3/06 at the
High Court (Commercial Division) Accra on 23/1/2006 claiming against the
defendant:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;
An order directed at the defendant to reconcile the passbook entries
with the statement of accounts to reflect the true state of the amounts
deposited in the Savings Accounts Numbers 3838 and 8542 belonging to Comfort
Mensah (deceased) which the defendant bank failed to capture in the respective
Bank Statements issued to the plaintiffs by the defendant.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;
Interests on the amounts which the defendant has failed to credit the
deceased’s accounts with from the respective dates on which they should have
been credited up to and inclusive of the date of payment.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;
Costs.<o:p></o:p>The
defendant entered appearance but failed to file a defence. On 27 February 2006,
the trial Court entered a judgment in default of defence against the defendant
on all the reliefs claimed by the plaintiffs. On 7 March 2006, the plaintiffs
filed an Entry of Judgment for an amount of GH¢64,334.94 and proceeded to
attach the properties of the defendant by way of execution. On 12 April 2006,
the defendant had the execution set aside on the grounds that the judgment was
only an order directed at the defendant to reconcile accounts. The Court
ordered the defendant to comply with the judgment by reconciling the passbook
entries with the bank statements within 7 days. Based on this order the
defendant submitted to the Court Registry a reconciliation report, Exhibit M,
stating the total balance in Savings Account Number 3838 to be GH¢ 105.01 and
that in Savings Account Number 8541 to be GH¢134.88 as at 28/02/2006.<o:p></o:p>The
plaintiffs were dissatisfied with this report and alleged that the report filed
by the defendant did not reflect the outcome of the reconciliation of the
accounts which their own auditor had participated in with officers of the
defendant bank. They claimed the reconciliation team came out with an amount of
GH¢49,249.01 as due to the deceased’s Saving Accounts. They accordingly filed a
motion on 18 May 2006 to the High Court for the appointment of a Court Expert
under Order 26 rule 1 of C.I. 47 to do the reconciliation. The court refused
the application on the ground that the defendant has satisfied the order of
court and the court was functus officio.<o:p></o:p>The
plaintiffs still dissatisfied issued a writ of summons with Suit No. RPC/107/2006,
on 26 June 2006. The plaintiffs whether by design failed to mention in the
original statement of claim the earlier case and the court orders and the
reconciliation report produced by the defendant pursuant to the court order.
They simply asked for the payment by the defendant the sum of GH ¢49,249.01with
interest and cost. It was the defendant who raised these antecedents as the
basis for its defence of estoppel by judgment. It was after cross-examination
of the plaintiffs that they amended their writ of summons and statement of
claim to include a claim challenging the conclusions and opinions in the
reconciliation report, Exhibit M. The amended writ of summons filed on 19
February 2006 was for: <o:p></o:p>1.&nbsp;&nbsp;&nbsp;
Payment of the total sum of GH ¢49,249.01 by the defendant being the
monies deposited in the Savings Accounts Numbers 3838 and 8541 belonging to
Comfort Mensah (deceased) which the defendant bank failed to capture in the
respective Bank Statements issued to the plaintiffs.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;
Payment of interests at the inter-bank rate from the respective dates on
which the various sums of money were deposited and recorded in the respective
Saving Passbooks.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;
A declaration that the unilateral opinion expressed by the defendant in
the Reconciliation Report is unethical and is also inconsistent with the
findings contained therein by the Reconciliation Team<o:p></o:p>4.&nbsp;&nbsp;&nbsp;
Costs.<o:p></o:p>