DALEX FINANCE AND LEASING COMPANY LTD. vs. EBENEZER DENZEL AMANOR, L.G.G COMPANY LIMITED AND HUAWEI TECHNOLOGIES (GH) SA LIMITED [2021]DLSC10163

DALEX FINANCE AND LEASING COMPANY LTD. vs. EBENEZER DENZEL AMANOR, L.G.G COMPA... [2021]DLSC10163

Date	2021-04-14
Suit No.	CIVIL APPEAL NO. J4/02/2020
Citation No.	[2021]DLSC10163

BAFFOE-BONNIE JSC (PRESIDING)

APPAU JSC

PWAMANG JSC

DORDZIE (MRS.) JSC

HONYENUGA JSC

SAMUEL M. CODJOE ESQ FOR THE PLAINTIFF/APPELLANT/APPELLANT.

PETER ZWENNES FOR THE 3RD DEFENDANT/RESPONDENT/RESPONDENT.

[2021]DLSC10163
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													<main id="main" class="content" style="min-height: 60rem" >DALEX FINANCE AND LEASING COMPANY
LTD.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(PLAINTIFF/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>EBENEZER DENZEL AMANOR, L.G.G COMPANY
LIMITED AND HUAWEI TECHNOLOGIES (GH) SA LIMITED<o:p></o:p>(DEFENDANT /RESPONDENT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL
APPEAL NO. J4/02/2020&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:
14TH APRIL, 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMUEL M. CODJOE ESQ FOR THE
PLAINTIFF/APPELLANT/APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

PETER
ZWENNES FOR THE 3RD DEFENDANT/RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>BAFFOE-BONNIE JSC (PRESIDING), APPAU JSC, PWAMANG
JSC, DORDZIE (MRS.) JSC, HONYENUGA JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;PWAMANG JSC:-<o:p></o:p>My
Lords, this appeal presents for our consideration the circumstances under which
a limited liability company may be held liable on account of the fraudulent
acts of its official. From the facts of the case, it is beyond doubt that John Oseku
Ankrah, who at all material times was the Finance Manager of the 3rd
defendant/respondent/respondent (the 3rd defendant), in his
engagements with the plaintiff/appellant/appellant (the plaintiff), was acting
a role in a&nbsp; choreographed performance
put up to deceive and defraud unsuspecting third parties. The performance
involved a number of conspirators and they succeeded in collecting an amount of
about GHS6,539,612.00 from the plaintiff, a non Bank Financial Institution, as
loans that have not been repaid. As is usual with this type of cases, the
prospects of recovering the money from the fraudsters are dim so the court has
been called upon to decide, between the plaintiff and the 3rd
defendant, a big multinational telecommunications company, who ought to bear
the loss. <o:p></o:p>THE
FACTS<o:p></o:p>The
scheme designed by the gang was this. Sometime about 10th &nbsp;May, 2012 the 1st defendant approached the plaintiff
and presented to it some Local Purchase Orders, VAT Invoices and Waybills which
showed that his company, the 2nd defendant, supplied telecommunication
equipment to the 3rd defendant and was waiting payment. He told them
he wanted to discount the invoices, an undertaking the plaintiff is into as
part of its business. Supporting the documents was a letter on the letterhead
of the 3rd defendant signed by John Oseku Ankrah, Finance Manager,
confirming the order and stating that the items had indeed been received. The
letter further stated, that as requested by the 2nd defendant,
payment for the order would be effected to the joint names of the plaintiff and
2nd defendant. On receipt of the documents the plaintiff decided to
verify their authenticity. Some officials went to the offices of the 3rd
defendant in Accra and held a meeting with the Finance Manager in his office
and he affirmed the transaction between the 2nd and 3rd
defendants and the letter he signed. After that affirmation the plaintiff requested
the 2nd defendant to formally apply for a loan. The 2nd defendant
duly applied attaching all the documents and a loan for an amount of GHS2,317,112.00
was quickly processed and approved to be repaid within 180 days at monthly
compound interest of 4.7%. The 1st defendant signed as the guarantor
of the loan.<o:p></o:p>However,
before disbursement, &nbsp;the plaintiff wrote
another letter addressed to the Finance Manager of the 3rd defendant
stating that; “We have received a request from LGG (2nd defendant)
to discount their payment on Purchase Orders…….totaling GHS3,310,160.00….All
payments in connection with the contract must be transferred directly to our
Fidelity Bank Account Number 1070000434348, Ridge Towers Branch. Please confirm
acceptance of our proposal by appending your signature in the space provided
below.” The letter provided spaces for Name, Signature, Position, Date and
Stamp. The letter was countersigned as requested by John Oseku Ankrah, Finance
Manager and dated 16/05/2012 but no stamp was affixed. When the countersigned
letter was received by the plaintiff, it executed the first loan agreement of
GHS2,317,112.00 the same day, 16/05/2012 and the 1st and 2nd
defendants were paid.<o:p></o:p>There
was a second loan for GHS3,622,500.00 which followed the same modus involving
invoices and waybills confirmed by the Finance Manager and a letter accepting
to pay money due to 2nd defendant directly to the plaintiff. Then
there was a third for GHS600,000.00 but by then the amount expected from the 3rd
defendant was sufficient to cover that amount as well so no documents were
taken for it. Before requesting for the third loan, the 2nd
defendant paid the plaintiff GHS1,000,000.00 to offset an earlier loan it
contracted before the series of loans subject matter of this litigation. This
apparently gave the plaintiff the confidence that &nbsp;these loans would be repaid. <o:p></o:p>Sadly,
no payment was received from the 3rd defendant by end of the
expected period and apart from a meager sum of GHS429,965.00, the 2nd
defendant defaulted in payment of the three loans. When the plaintiff enquired
from 1st defenda</main>