STANDARD BANK OFFSHORE TRUST CO. LTD. vs. NATIONAL INVESTMENT BANK LTD. AND OTHERS [2015]DLCA3146

STANDARD BANK OFFSHORE TRUST CO. LTD. vs. NATIONAL INVESTMENT BANK LTD. AND OTHE... [2015]DLCA3146

Date	2015-10-15
Suit No.	CIVIL APPEAL NO. H1/37/2014
Citation No.	[2015]DLCA3146

MARIAMA OWUSU J.A. (PRESIDING)

V. D. OFOE J. A.

GERTRUDE TORKORNOO

J. A.

MRS. VICTORIA BARTH FOR THE PLAINTIFF/RESPONDENT

MR. DICK ANYADI FOR THE DEFENDANT/APPELLANT MR. KWAKU ASIRIFI FOR 3RD RESPONDENTS

[2015]DLCA3146
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STANDARD BANK OFFSHORE
TRUST CO. LTD.

NATIONAL INVESTMENT BANK
LTD. AND OTHERS

&nbsp;[COURT OF APPEAL, ACCRA]

CIVIL
APPEAL NO. H1/37/2014&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;DATE: 15TH
OCTOBER, 2015

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COUNSEL:&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

MRS. VICTORIA BARTH FOR THE
PLAINTIFF/RESPONDENT,

MR. DICK ANYADI FOR THE
DEFENDANT/APPELLANT

MR.
KWAKU ASIRIFI FOR 3RD RESPONDENTS

</div>

CORAM:

MARIAMA
OWUSU J.A. (PRESIDING), V. D. OFOE J. A. , GERTRUDE
TORKORNOO, J. A.

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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

JUDGEMENT

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MARIAMA OWUSU, J.A.:

“The Rule in Turquand’s” case or the “Indoor Management Rule” is that, a person dealing with a company was entitled to assume,
in the absence of facts putting him on notice or inquiry, that there had been
due compliance with all matters of internal management and procedure required
by the regulations of the company. &nbsp;This
rule had been codified in Sections
139-143 of our Company’s Code, 1963 (Act 179) and under Section 142 (2) of
Act 179, if the company had held out
someone as its agent, it would be estopped from denying the appointment; and a
de jure or de facto officer of the company could be assumed to have the usual
powers and duties of that sort of officer.”

See the case of Godka
Group of Companies vrs. P. S. International Ltd. (2001-2002) SCGLR 918, 922 holding (6) which had quoted with
approval the English case of Royal
British Bank vrs. Turquand [1843-60] ALL ER Rep 435.&nbsp;

The facts of this case admit no controversy.&nbsp; The 1st defendant/appellant (NIB)
through its then Managing Director Mr. Daniel Charles Gyimah guaranteed per
Aval thirty (30) Promissory Notes issued by the 2nd defendant to
mature on 21-1-2009.&nbsp; The promissory notes
were subsequently discounted through Iroko Securities Limited of the United
Kingdom to investors, Sphynx Capital Market PCC and others represented by the
plaintiff/respondent as trustee in this suit.

The proceeds of the discounted notes in the sum of
US$45,412,790,000 were paid in two tranches on 24-5-2007 and 15-6-2007 into
Ghana International Bank, London in favour of the 1st
defendant/appellant.

In January 2009, the promissory notes matured.&nbsp; When the plaintiff/respondent contacted Ghana
International Bank, London which was the 1st defendant’s
correspondent bank in the United Kingdom and requested for payment, the request
was turned down because no funds were available for payment.

The plaintiff subsequently made direct demand on the 1st
defendant/appellant.&nbsp; This demand was
dishonoured as management of the latter informed plaintiff/respondent that it
had no knowledge about the existence of the notes nor the guarantee per Aval
executed on its behalf by its Managing Director, the 3rd defendant
in the case.&nbsp; After offering its copies
of the documents on the transaction to 1st defendant/appellant to
study and several demands for payment yielded no positive result, the
plaintiff/respondent mounted the action which has resulted in the instant
appeal.

The 1st defendant/appellant in its statement
of defence and counterclaim denied plaintiff/respondent’s claim of its
indebtedness to the plaintiff/respondent.&nbsp;
In particular, the 1st defendant/appellant averred that it
did not guarantee any promissory notes issued by the 2nd defendant,
nor has it confirmed any alleged guarantee nor held the 3rd
defendant out as having the sole authority or the authority of 1st
defendant or its board of directors to sign any guarantee or confirm any
guarantee on its behalf.&nbsp;

It further alleged that the entire transaction upon which
the plaintiffs/respondents claim was based is tainted with fraud.&nbsp; Again, the plaintiff was negligent for the way
the transaction was syndicated as it failed to do due diligence and other
verifications in respect of the 3rd defendant’s authority to single
handedly sign and commit the 1st defendant/appellant to the
guarantee per Aval to the tune of US$60million, a sum which is more than 100%
of the bank’s mandate by the provision of the Banking Act 2004 (Act 673)