CORNELIUS OGBU vs. ACCESS BANK (GH) LTD [2015]DLCA6696

Date	2015-02-18
Suit No.	CIVIL APPEAL SUIT NO: H1/16/15
Citation No.	[2015]DLCA6696

C. J. HONYENUGA

J.A (PRESIDING)

B.F.ACKAH-YENSU J.A

SAEED K. GYAN JA

AUGUSTINE AVOUR-MENSAH FOR PLAINTIFF/RESPONDENT

AMUA-SEKYI FOR DEFENDANT/APPELLANT ABSENT

[2015]DLCA6696
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													<main id="main" class="content" style="min-height: 60rem" >CORNELIUS OGBU<o:p></o:p>vs.<o:p></o:p>ACCESS BANK (GH) LTD<o:p></o:p>[COURT
OF APPEAL, CAPE COAST]<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 SUIT NO: H1/16/15&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: 18TH FEBRUARY,
2015<o:p></o:p>

AMUA-SEKYI
FOR DEFENDANT/APPELLANT ABSENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;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>BARBARA ACKAH-YENSU, JA <o:p></o:p>This[sic]
an appeal filed by the Defendant/Appellant herein against the judgment of the
High Court sitting at Tarkwa, and dated 4th March, 2014. The brief facts of the
case are that the Plaintiff/Respondent who is a customer of the Defendant Bank,
claimed that his Statement of Account No.008023076571 for the period 1st April,
2012 to 22nd November, 2012 did not reflect transactions, particularly deposits
made by his storekeeper Samuel Kodua, with the Tarkwa Branch of the Defendant
Bank. The Plaintiff/Respondent contended that although the Tellers of the
Defendant Bank stamped and signed the pay-in-slips presented to them as
received, the amount thereon did not reflect in the said Statement of Account.
The total value of the said pay-in-slips amounted to Gh¢57,340.00.<o:p></o:p>The
Tellers of the Defendant Bank were arrested pursuant to a complaint lodged by
the Plaintiff/Respondent to the Police at Tarkwa.&nbsp; Counsel for the Plaintiff/Respondent, on or
about 27th November, 2012, informed the Defendant Bank that the said
pay-in-slips were indeed stamped officially with stamps of the Defendant Bank
and signed by them as having received the amounts stated therein. The said
Counsel also informed Plaintiff/Respondent of the need to refund to him the sum
of Gh¢57,340.00 plus GH¢10,000.00 representing damages for negligence,
interest, as well as legal fees. <o:p></o:p>The
Plaintiff/Respondent averred that the Defendant/Appellant had perpetrated fraud
on him by colluding with his store keeper to dupe him of the said sum of
Gh¢57,340.00. That, the said fraudulent acts had occasioned financial losses to
the Plaintiff’s business leading to loss of confidence of Plaintiff’s creditors
and a resultant loss in credit worthiness. <o:p></o:p>The
Defendant/Appellant denied the allegations made by the Plaintiff/Respondent and
contended that the cash deposit book of the Plaintiff/Respondent was kept by
his agent and/or servant, Samuel Kodua. That, from the Defendant Bank’s records
the said amount of Gh¢57,340.00 was never paid into the Plaintiff/Respondent’s
account at the Bank.&nbsp; It was the said
Samuel Kodua who managed to forge the last copies of the cash pay-in-slips to
read amounts he never paid into the account.&nbsp;
Samuel Kodua was arrested by the Police as well as the Tellers of the
Defendant Bank, and Samuel Kodua confessed that he had forged the last sheets
of the pay-in-slips and thus never paid into the Plaintiff’s bank account the
said sum of Gh¢57,340.00. <o:p></o:p>At
the end of the trial, the Judge found that the Plaintiff/Respondent had
established his case on the balance of probabilities.&nbsp; He accordingly entered judgment for the
Plaintiff/Respondent and against the Defendant Bank. The Defendant/Appellant,
aggrieved by this decision filed an appeal upon the following grounds: <o:p></o:p>a.
The judgment failed to take cognizance of the claim for negligence as
juxtaposed to that for a liquidated claim. <o:p></o:p>b.
The evidence at the trial was clear that the monies claimed by the plaintiff
were never paid into his account by his own servant and/or agent. <o:p></o:p>c.
The costs awarded was excessive. <o:p></o:p>d.
The judgment is against the weight of evidence led at the trial. <o:p></o:p>e.
Additional grounds would be filed upon receipt of the record. <o:p></o:p>Counsel
for the Defendant/Appellant, in his written submissions, argued only grounds
(a) and (b).&nbsp; The rest of the grounds
canvassed in the Notice of Appeal are therefore deemed to have been abandoned.
Also, Counsel argued grounds (a) and (b) together, and so I shall do same. <o:p></o:p>It
is Counsel for Defendant/Appellant’s contention that since there is no
challenge to the forgery committed by the said Samuel Kodua, if the monies were
never paid into the account and Exhibit “B” series (forged pay-in-slips) were
indeed forged by Samuel Kodua, then there was no basis for the Plaintiff’s
claim?[sic] It is his further contention that if the monies were not paid into
the account then the trial Judge erred in granting a liquidated sum to the
Plaintiff/Respondent.&nbsp; Counsel stated as
follows: <o:p></o:p>"If it was the said Samuel Kodua
who forged the figures in Exhibit B then how can the bank be culpable? Clearly
the plaintiff wanted to reap where he had not sown.&nbsp; He knew very well that Samuel Kodua forged
the figures on Exhibit B series that is why the report to the police
station.&nbsp; He clearly knew about the
forgery and that is why the alleged collusion in his pleadings.&nbsp; His reliefs (a) and "b" cannot
stand. His relief (c) for general damages cannot stand in a vacuum.&nbsp; General damages for exactly what? Negligence
or fraud or collusion? Whichever way one looks at it the claim of the plaintiff
cannot hold water". <o:p></o:p>As
rightly pointed out by Counsel for the Defendant/Appellant,
Plaintiff/Respondent’s claim was basically for a liquidated sum together with
interest.&nbsp; Plaintiff/Respondent also made
a claim for General Damages.&nbsp; In his
Amended Statement of Claim, the Plaintiff/Respondent averred at paragraphs</main>