STANDARD BANK OFFSHORE TRUST CO. LTD. AND TRICON TRAKE MANAGEMENT LTD. vs. NATIONAL INVESTMENT BANK LTD. AND 2 OTHERS [2015]DLCA5225

STANDARD BANK OFFSHORE TRUST CO. LTD. AND TRICON TRAKE MANAGEMENT LTD. vs. NATI... [2015]DLCA5225

Date	2015-10-15
Suit No.	CIVIL SUIT: NO: H1/37/2014
Citation No.	[2015]DLCA5225

M. OWUSU (J.A.) – PRESIDING

OFOE (J.A.)

TORKORNOO (J.A.)

MRS. VICTORIA BARTH FOR THE PLAINTIFF/RESPONDENT

MR. DICK ANYADI FOR THE DEFENDANT/APPELLANT

MR. KWAKU ASIRIFI FOR 3RD RESPONDENTS

[2015]DLCA5225
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													<main id="main" class="content" style="min-height: 60rem" >STANDARD BANK OFFSHORE TRUST CO. LTD. AND TRICON TRAKE
MANAGEMENT LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NATIONAL INVESTMENT BANK LTD. AND 2 OTHERS<o:p></o:p>(2ND
&amp; 3RD DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL SUIT: 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 15TH
OCTOBER, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MRS.
VICTORIA BARTH FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>MR. DICK
ANYADI FOR THE DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>M.
OWUSU (J.A.) – PRESIDING, OFOE (J.A.), TORKORNOO (J.A.)<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARIAMA
OWUSU, J.A.:<o:p></o:p>“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. 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.”<o:p></o:p>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. <o:p></o:p>The facts of this case admit no controversy. 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. 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.<o:p></o:p>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.<o:p></o:p>In January 2009, the promissory notes matured. 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.<o:p></o:p>The plaintiff subsequently made direct demand on the 1st
defendant/appellant. 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. 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.<o:p></o:p>The 1st defendant/appellant in its statement
of defence and counterclaim denied plaintiff/respondent’s claim of its
indebtedness to the plaintiff/respondent. 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. <o:p></o:p>It further alleged that the entire transaction upon
which the plaintiffs/respondents claim was based is tainted with fraud. 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) and other laws and regulations in Ghana including
the regulations of the 1st defendant/appellant. It therefore
counterclaimed against plaintiff and 3rd defendant as follows:<o:p></o:p>