AMA SERWAH vs. YAW ADU GYAMFI AND VERA ADU GRAMFI [2018]DLCA4536

Date	2018-04-17
Suit No.	SUIT NO. H1/36/2017
Citation No.	[2018]DLCA4536

ADUAMA OSEI JA (PRESIDING)

SENYO DZAMEFE JA

WELBOURNE (MRS.) JA

DENNIS KUMAH KWAKYE FOR PLAINTIFF/APPELLANT

FREDERICK KANKAM BOADU WITH HIM.

KWAME ANTWI AFRIYIE FOR DEFENDANT/RESPONDENT.

[2018]DLCA4536
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													<main id="main" class="content" style="min-height: 60rem" >AMA SERWAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>YAW ADU GYAMFI AND VERA
ADU GRAMFI<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), KUMASI]<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">

SUIT NO. H1/36/2017&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; DATE: 17TH APRIL, 2018<o:p></o:p>

KWAME
ANTWI AFRIYIE FOR DEFENDANT/RESPONDENT.<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>ADUAMA OSEI JA:<o:p></o:p>This
is our judgment in an appeal against a judgment of the Commercial Division of
the High Court, Kumasi, dated the 22nd of December, 2015, in which the High
Court dismissed the action of the Plaintiff/Appellant on the ground that at the
time the Plaintiff/Appellant instituted her action, she had not obtained
letters of administration and therefore lacked capacity to sue, and also
dismissed the counterclaim of the Defendants/Respondents on the same ground of
lack of capacity.<o:p></o:p>In
this judgment, the Plaintiff/Appellant is referred to as “the Appellant”, and
the Defendants/Respondents are referred to as “the Respondents”.<o:p></o:p>The
writ of summons by which the action was initiated was issued in the High Court,
Kumasi, on the 14th of January, 2014, and it was indorsed for reliefs against
the Respondents jointly and severally as follows: <o:p></o:p>“a. An order for the recovery of the
sum of One Hundred and Thirteen Thousand United States Dollars ($113,000) or
its equivalent which money was fraudulently diverted into the account of the
2nd defendant with account number 1010243 by the defendants which money the
plaintiff was entitled to.<o:p></o:p>“b. Interest on the said amount from
2007 till date of final payment.<o:p></o:p>“c. Costs including legal fees.<o:p></o:p>“d. Any other relief deemed
appropriate by this Honourable Court”.<o:p></o:p>In
the statement of claim that accompanied the writ of summons, the Appellant
described herself as a trader resident in Kumasi, and she described the
Respondents as a married couple also residing in Kumasi and working as a
sawmill manager and a trader respectively.<o:p></o:p>As
averred in the statement of claim, the Appellant is a widow of the late Ernest
Owusu Baah who died in Italy while working there with a company known as Nuova
Ve SRL Fiorano Modenese Modena. He died from injuries he sustained in an
accident on 21st April, 1998 and upon his death, she applied for an Italian
visa for the purpose of pursuing her deceased husband’s pension entitlements.
She could not make the trip however, because she was pregnant at the time. <o:p></o:p>According
to the Appellant, in view of her inability to make the trip, she authorised the
1st Respondent, who was a brother of her deceased husband to travel to Italy
and assist in the processing of her deceased husband’s pension benefits, of
which she and her three children by the deceased were the beneficiaries. The
names of the children were given as, Afua Dwumfour, Kwaku Owusu and Kwabena
Appau. <o:p></o:p>The
Appellant pleaded that the pension benefits were being paid by Institutio
Nazionale Providenzo Sociale (INPS), and that the payments were made through
various banks according to directives give by INPS from time to time. From
2001, according to the Appellant, she was receiving periodic payments for her
own benefit and for the benefit of the children, and in 2007, the payments were
being received through account number 0271211872, operated at the Prempeh II
Street branch of Barclays Bank, Kumasi. In that year (2007), however, there was
a sudden break in the receipt of payments and she had to write to the bank to
complain. The response to her complaint was that no payments had been received
by the bank for her benefit. <o:p></o:p>The
Appellant stated that, in the circumstance, she resorted to frequent visits to
the bank in the hope that she would hear about resumption of payments. On one
of such visits, when she enquired about the payments at the bank, much to her
surprise, she was asked by a bank staff why she was coming to enquire about
payment when she had earlier in the day been paid some money.<o:p></o:p>According
to the Appellant, with this development, she conducted investigations as to
what had been happening and the investigations revealed that the 2nd Respondent
had conspired with the 1st Respondent to open an account at Barclays Bank with
the number, 1010243, using her particulars which included her name, date of
birth and address. Through the said account, the Respondents were fraudulently
and illegally receiving payments of pension benefits which they knew they were
not entitled to but belonged to her and her children. The Appellant alleged
that she reported the matter to the Police, and the Respondents are facing
criminal prosecution in respect of the various monies they fraudulently
diverted into the account they opened. <o:p></o:p></sp</main>