SALEMOK GHANA LIMITED vs ECOBANK GHANA LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION
    ACCRA - A.D 2019
SALEMOK GHANA LIMITED - (Plaintiff)
ECOBANK GHANA LIMITED - (Defendant)

DATE:  26TH JUNE, 2019
SUIT NO:  AB/88/2015
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MR. LAMTIIG APANGA THE PLAINTIFF
MR. ROBERT PAPPOE FOR THE DEFENDANT
JUDGMENT

 

i. Introduction:

[1] The Plaintiff Company, Salemok Ghana Limited ("Salemok"), claims $5,000 United States Dollars and interest against the Defendant for unauthorized transaction that occurred on its account, damages for negligence and costs from the Defendant, Ecobank Ghana Limited (the "Bank"), for unauthorized withdrawals from its dollar account and, for damages for loss suffered as a result of the Bank's negligence in handling Salemok's monies in its account with the Bank.

 

[2] Salemok's claim relates to an alleged unauthorized transfer of money between December 22, 2014 and about December 24, 2014 totaling $8,000 and related complaint lodged by a letter dated January 7, 2015 to the Bank upon the discovery of the unauthorized transfers.

 

[3]The claim of the Plaintiff was met with a statement of defence filed by the Defendant on January 26, 2016 in which the Plaintiff’s claim was vehemently denied. The Defendant contends that the Plaintiff failed to comply with the terms and conditions of the online banking agreement it signed with the Defendant. According to the Defendant the Plaintiff failed to prove that the Defendant made unauthorized wire transfer in the sum of $8,000.00 from the Plaintiff’s account. The Defendant did not file a Counterclaim.

 

ii. Issues for Trial

[4] At the close of the pleadings the issues contained in the Application for Directions filed by the Plaintiff on February 23, 2016 and adopted by this Court differently constituted for trial were:-

a) Whether or not the Defendant made unauthorized wire transfer in the sum of US$8,000.00 from the Plaintiff Account No. 00521044399855401?

b) Whether or not there has been previous unauthorized wire transfer from the Plaintiff’s account.

c) Whether or not the Plaintiff has ever used the online banking services provided by the Defendant?

d) Whether or not the Plaintiff is entitled to its claims.

e) Any other issues arising out of the pleadings.

 

iii. Determination of the Issues by the Court

[5] The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323). The stated provisions have received judicial blessing as the Supreme Court has pronounced on them in the past to be the nature and standard of proof in civil cases.

 

[6] One of such decision is the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

 

[7] By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 2GLR 221. Further, the Supreme Court reiterated the principle that the party who asserts has the burden of proof in the case of ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held inter alia as follows:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law of evidence as provided under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”

How did the Plaintiff prove its case?

 

iv. Evidence Obtained by the Court:

[8] The Plaintiff’s evidence was given by one Madam Faustina Asarefori, the Operations Manager of the Company and Mr. Salia Adams, who was the Managing Director of the Company. Sadly, Mr. Adams passed on to glory shortly after testifying in Court. The pith and substance of the Plaintiff’s case is that it is a Company in the business of freight forwarding. According to the witnesses Salemok has an account with the Bank’s branch located at the Silverstar Tower Accra. Madam Asarefori testified that Salemok “operates two account with the Defendant which is 0052104439985401 and 005134439985401 being a Dollar and Cedi accounts respectively from the inception of our company in 2011. I am a co-signatory to the said accounts of the Plaintiff. Mr. Adams Salia the Managing Director of the Plaintiff company is the other signatory but he has the mandate to sign cheques not exceeding GH¢500 which means both of us must sign on all cheques exceeding GH¢500’.

 

[9] According to Madam Asarefori sometime in 2012 they were asked by the Bank to sign up for internet banking services in order to operate their accounts using the internet which they did. She further testified that “the internet service we signed up remained dormant until January 31, 2014 when we received an email from the Defendant indicating that our internet banking account has been inactive since 18th February, 2013. The Defendant subsequently sent us email and gave us a user ID and Password we could use to reactivate the internet banking account and use same for our transactions”. She tendered as Exhibit “A” a copy of the emails sent to them by the Bank.

 

[10] The further evidence of the witness was that they did not use the internet banking services since they found the traditional banking services more suitable and convenient for their business. According to her “in January, 2015 we noticed transfers out of our dollar account which transactions took place from 22nd December, 2014 to 30th December, 2014 without our authorization or approval. She tendered as Exhibit “B” a copy of the bank statement indicating the transfers from the account.

 

[11] Madam Asarefori further said “as at 10th December, 2014 we had a balance of US$3,111.70 however we noticed that a total amount of US$3,111.70 was withdrawn on 22nd December, 2014 leaving us with a negative balance of negative US28.30. We received a transfer of US$5,585.28 on 24th December, 2014 from a customer in Sierra-Leone as payment for freight forwarding services and then we noticed that on the same day several transfers were made from our dollar account leaving us a balance of US$247.98”.

 

[12] Madam Asarefori further testified that the Bank later on, on 29th December, 2014 credited Salemok’s dollar account with an amount of US$1,000 from a company they don’t have any dealing with. The witness further testified that all the unauthorized transfers from the Salemok’s dollar account came with bank charges. The further case of the Plaintiff’s witness was that “we withdrew US$1,000 by cheque No. 312 by the Managing Director, Salia Adams and we received an SMS alert on the withdrawal by the Managing Director and that is when we noticed that our account balance does not match with our records of transactions on the account”.

 

[13] Madam Asarefori further testified that “I was sent to the bank to make a withdrawal of US$1,000 and I was told by the bank official that we do not have adequate funds to cover the withdrawal, so I requested for the bank statement and discovered that there has been several unauthorized transactions from our account without our approval or knowledge. I informed the Managing Director of the Plaintiff Company about the transactions in the account and he and another staff of our company Mavis Oppong lodged a verbal complaint at the branch and later wrote a letter to the effect. A copy of the said letter was tendered as Exhibit “C” at trial.

 

[13] The further evidence of Madam Asarefori was that as Officers of Salemok they later asked to see their account relationship manager at Ecobank Legon branch and they did so and they were asked to write formally to the Defendant bank to lodge a formal complaint. She said after complying with the request the Bank sent their investigator to Salemok’s office. This is what Madam Asarefori said:

The investigator came to our office with the sales manager called Samuel Asante Asiamah and the investigator told us that he has detected that some of the monies we complained of were transferred to Nigeria, others were also transferred from Ecobank Airport branch to the McCarthy Hill Branch and some more were transferred to an account at Calbank Limited. The investigator advised us to lodge a complaint with the police and stated in his report to the police that he would provide full details of the various account in which our funds were transferred to. The witness tendered as Exhibit D a copy of a letter written to the District Commander, Ghana Police Service, Airport-Accra.

 

[14[ Madam Asarefori further testified that the Bank investigator who came to their office is in a position to provide the court with full details of the transfers and will confirm that the said transactions were not authorized by Salemok. According to Madam Asarefori

“we later discovered after we lodged the complaint that US$964.87, US$1,965.00 and US$500 were transferred into our dollar account on 8th January, 2015 and 29th January, 2015 respectively without our consent, authorization or involvement. We do not have dealings or transactions with the senders of the funds. In fact we do not know the people or companies that sent the funds into our account. We also discovered that a wire transfer of Gh¢ 9,000 was made into our cedi account on 24th December, 2014 from an unknown source. We do not have any dealings or transaction with the person or entity. Strangely enough we noticed that two transfers were made from our cedi account on 29th December, 2014 without our approval or authorization”.

 

[15] Madam Asarefori further testified that Salemok has lost its working capital as a result of the transfers made from its account. She said the Plaintiff is unable to meet the demands of its customers and as a result they have lost several customers and business. According to her they usually pre-finance their clients’ shipment and collect their fees after discharging the services to the client but now “we are unable to do same since our monies were wrongly taken from our accounts”. She therefore prayed the Court to grant the Plaintiff’s claims.

 

[16] I note that under cross examination by the Defendant’s counsel, Madam Asarefori stood by her testimony that Salemok did not authorize the withdrawals.

 

[17] In further cross-examination, this is what Madam Asarefori said as captured in the proceedings of Tuesday March 12, 2018.

“Q: Can you look at Exhibit B, the statement. It is your story that on the 22/12 a lot of transfers occurred in respect of your account.

A: Yes my lord, a lot of transaction went on which I knew nothing about

Q: I am putting it to you that the only transfer that occurred that day was a 1,000 US dollars and 2,000 US dollars

A: That is correct. If you look at Exhibit B, the statement of accounts you will see that our transactions were carried out with cheques but the two transactions counsel referred to were not carried out by cheque. So by Exhibit B our last transaction was on the 10th of December and the transactions counsel refers to occurred on the 22nd of December.

Q: In the said transaction SMS alert were sent to MTN number 0244257559

A: That MTN number belongs to Mr. Salia Adams the MD. When we filled the form we used the MD’s number to receive SMS alert and the company’s e-mail address to receive e-mails but in respect of these two transactions we did not receive any e-mail correspondence and the MD says he also did not receive any alert.

 

[18] As stated above, the Plaintiff Company also called the late Salia Adams to testify. His witness statement filed on June 21, 2016 and adopted at the trial as his evidence in chief on March 16, 2018 corroborated the evidence of Madam. Asarefori in terms of the number of accounts Salemok has with the Bank. “He said the Salemok had two Account with the Defendant which is 0052104439985401 and 005134439985401 Dollar and Cedi accounts respectively from the inception of our company in 2011”. He also confirmed that the amount of withdrawals made in December 2014 and the fact that those withdrawals were without Salemok’s consent and authorization. I have therefore decided not to rehash the facts.

 

[19] The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Plaintiff’s witness, Mr. Salia Adams on March 16, 2018.

“Q: How many accounts does Salemok have with Ecobank.

A: They are two accounts.

Q: Can you tell us the type of accounts that you have with the Defendant.

A: We have two accounts a local account and a forex account.

Q: Which of the accounts did you subscribe the internet banking with?

A: We did with both accounts.

Q: When was that?

A: In 2014 there about.

Q: During the process of the subscription of the internet account, you went through some process

A: No my lord. I have an explanation. Somewhere 2013 our accounts Manager Josephine Eghan placed an advert on the internet introducing us to the services, so I decided to go for the services. I later sent my secretary for the forms. The forms came without an attachment, it was one sheet. I completed the form and submitted same. That was when the whole transaction ended, we were hooked onto it, I was receiving alerts on all transactions.

Q: In filling the form did you sign alone

A: Yes I signed alone as the MD

Q: Is there any other person who is the signatory to the accounts

A: Yes my lord. One person

Q: What is the name of that person?

A: Madam Faustina Asare Fori

Q: In filling the forms you included your e-mail address and your mobile phone number, is that correct

A: Yes my lord

Q: Your e-mail address is salemokghana@yahoo.com

A: That is right

Q: Your mobile phone number is 0244257559, is that correct

A: That is correct

Q: When you signed up to the internet banking a mail was sent to your e-mail address, is that correct

A: Yes a mail was sent congratulating us for buying into the service

Q: In fact two e-mails were sent on 14/2/13 in which your password and your username was indicated in the mail

A: Yes I did receive e-mail advising us on our password. It was a password given and a username and I was supposed to develop or generate my own user name and a password

Q: The password of your e-mail address is only known to you, is that correct

A: My lord the password to the e-mail address of the company is known to three persons, my secretary, my operations manager and myself

Q: Can you give us the names of your secretary and your operations Manager

A: The name of my secretary is Mavis Oppong and my operations manager is Faustina Asare Fori

Q: Do you know as a fact that in the operations of internet banking you can operate it from any location that you are

A: Yes I am aware of that

Q: So would you agree with me that any of the people you have mentioned can go into your e-mail account from anywhere without your knowledge because they have your password.

A: Oh yes they could

Q: Would you also agree with me that any of the people you mentioned, those two ladies can divulge information to anybody without your knowledge

A: It is possible to do that but I can say the mail I received for the password because I was supposed to generate a new password I did not make it known. I deleted it. I did so because given a second thought I saw that I would not be using the services because that particular accounts was established for a purpose so the internet services would not be needed…

Q: In operating online banking services you know it is governed by terms and conditions

A: I will say yes in general terms but regards to my enrolment I did not receive any terms and conditions

Q: I am putting it to you that the Defendant’s online banking platform is governed by terms and conditions

A: It could be possible;

Q: Your story is that to withdraw the sum of GH¢500.00 and above, you and Madam Faustina Asare Fori must jointly sign for the said sum

A: The accounts is on two signatory, I am the principal signatory, Madam Faustina is a support signatory. As the principal I have the authority to sign up to 500 dollars on the forex account and GH¢500 on the local account. Any amount above these two would have to be signed by the two signatories, that was the instruction to the bank

Q: Was there any limit to the withdrawal using internet banking

A: I do not remember placing a limit and I did that because I was not interested in using that service

Q: You were not interested and you did not deactivate the service, is that not so?

A: That is right but I can explain that. I did not do the deactivation because I felt sick and I have been out of office since then for the past four years.

Q: Is it your case that even if you are not in the office nobody could do any work?

A: My lord if I am not in the office what goes on Madam Faustina manages the office but when it comes to the banking transactions I am always on notified. I also sign the cheques.

Q: It is also your story that various sums of money were taken from your accounts without your authority, is that your case

A: We noticed that after sometime over a period some transactions occurred in the account which I or the office did not authorise

Q: How much was involved

A: My Lord, on December 22nd 2014, we were preparing to break for Christmas holidays so we withdrew money from our local accounts to pay allowances and drew two cheques on the forex account, each cheque was for 1000 US dollars. One for myself and the other for Madam Faustina so that ended our 2014 transactions. In 2015 in the first week I submitted my 1000 dollar cheque and it went through some two days later Madam Faustina submitted her cheque and it was rejected. At the point of issuing these two cheques we had about 3000 dollars in that account. And were expecting some remittances from Sierra Leone but the money did not hit the accounts before the years ending 2014. So when the cheque was returned I went to the bank to call for a statement of accounts on both accounts, then I saw that some 5,000 dollars has been credited to our forex account from Sierra Leone. It happened on the 24th of December. I became troubled. One, because I never received any alert and two, I found out on the statement that certain transactions have happened on the forex on 22nd to the end of the year, various monies had been moved from the forex account without authorization from me. So I decided to see the Manager. Before the Managers office was a lady called Sandra, I do not know whether she is one of their relationship Managers. The interesting thing is that, after listening to us, a lady called Sandra said she was going to do something about it. The Sandra lady by the next morning had reversed the transfer that went to Lagos back to the account.

Q: All your transactions with Ecobank you receive SMS in respect of lodging in and withdrawals

A: Yes that is correct but till date I have still not received this particular one. I did not receive anything”.

 

[20[ In my respectful opinion the essence of cross-examination is to provide an opportunity for the cross-examiner to impeach the credibility of a witness where there are sufficient grounds to do so such as discredited evidence of previous testimony or where there is an available documentary or other evidence to impeach the qualification, experience expertise or position a witness has ascribed to himself or herself while testifying. In this case, respectfully, I am of the view that Counsel for the Defendant even though did a good job he failed to impeach the testimony of the Plaintiffs’ witnesses on the crucial part of their evidence, that is whether they authorized the withdrawals from their account in December 2014 and thereafter.

 

[21] At the conclusion of the testimonies of Madam Asarefori and Mr. Salia Adams the Plaintiff closed its case. At that stage, I made the following findings. They are that the:

(a) Plaintiff’s evidence adduced through the witnesses called is consistent with the pleadings filed.

(b) The testimonies of the witnesses are admissible, credible and relevant to the claim of the Plaintiff.

 

 

 

v. Defendant’s Defence:

[22] Now, how then did the Defendant Bank contest Plaintiffs’ claim and to what extent did Defendant establish on the balance of probabilities that the Plaintiff is not entitled to its claim?

 

[23] The evidence of the Defendant was adduced through its employee Samuel Asante Asamani, Senior Relationship Manager of the Defendant’s bank. He testified that he knows the Plaintiff as a customer of the Bank. He also said the Plaintiff is a subscriber to the Bank’s online banking services and therefore bound by the terms and conditions. He tendered as Exhibit 1 a copy of the Terms and Conditions. Mr. Asamani further testified that after subscription “the customer furnishes the Bank with his personal data, with which the Bank creates the customer’s Ecobank private data storage space”. The witness generally spoke about what happens after a Customer subscribes to the online banking and how the system works including the selection by the Customer of “his secure access image and his secure access message which make up the customer’s “Personal security package”.

 

[24] The witness further said “the said terms and conditions as per Exhibit “1” does not guarantee the operating security of the network and shall not be held liable for the consequences of the use of the user name and/or personal security package of a customer by third parties especially in cases of fraud or unauthorised use”.

 

[25] Mr. Asamani told the Court that:

“I say that monies were transferred out of forex account number 0052104439985401 held with the Defendant with the authorization and or mandate of the Plaintiff.

I must also say that all the transfers were authorized by the Plaintiff and that there was nothing unusual about the frequency with which monies were transferred from the said account. I also say that only 2 transfers on money occurred on the said account on 22nd December, 2014. However other transactions which occurred on the Plaintiff’s accounts were charges associated with the use of the internet banking platform.

I say that on 24th December, 2014 only 7 transfers occurred on the said account and not 14 as alleged by the Plaintiff. This is because the other deductions on the said account are charges associated with the use of the internet banking platform. I also say that the amount transferred on the Plaintiff’s account was rather US$8,099.00 and not US$8,000.00 as alleged by the Plaintiff”.

 

[26] The witness confirmed that by a letter dated 7th January, 2015 Salemok reported to the Bank about some transfers on its account and requested for investigations to be conducted. According to him a report received form the transaction department of the bank shows that SMS alerts on the transfers from 20th December, 2014 to 6th February, 2015 were delivered to cell phone number 0244257559. He tendered as Exhibit 2 a copy of the said investigation report. The witness said the mobile number in the report is the number provided by the Salemok to the Bank as 0244257559.

 

[27] The Defendant’s witness further testified that “the Plaintiff wrote to the Defendant and was referred to an official of the Marketing Department to handle the complaint and the said official having confirmed the transfers were carried out through the Defendant’s internet banking service. The said official did not however confirm any unauthorized transfers on the Plaintiff’s account to it (the Plaintiff). The Plaintiff’s representative also appeared before the investigation department and claimed the Plaintiff did not withdraw the said funds and was advised to formally make a complaint to the police.

 

[28] Mr. Asamani further said “I wish to say that the Defendant has not been negligent in the provision of internet banking and in the discharge of its duties and obligations to its customers including the Plaintiff. The Defendant further denies that it is liable to the Plaintiff and that it (Defendant) exercise due care and skill in the transfer of funds from the account of the Plaintiff. The Defendant has also put in place measures to safeguard the interest of its customers in all their transactions with the bank. The Defendant in further denial of the said paragraphs says that SMS alert messages were sent to the Defendants phone number provide to the Defendant on the dates of the withdrawal aforesaid and that the Defendant is not entitled to refund any money to the Plaintiff”.

 

[29] At the end Mr. Asamani’s evidence he was cross-examined by Mr. Apanga Counsel for the Plaintiff. The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant’s witness, on Friday, July 18, 2018.

Q: The entire online banking services is within the domain and control of the Defendant, is that not so

A: That is incorrect

Q: The bank is able to tell when a customer’s online banking services is dormant.

A: That is correct

Q: The bank is equally in the position to know every transaction that takes place on the Plaintiff’s account, is that not so

A: That is correct

Q: The bank or the Defendant is in the position to stop or allow transactions on the Plaintiff’s account

A: That is correct

Q: At the point of signing onto the online transaction did the Plaintiff sign up to any form or documentary agreement?

A: My Lord I am sure the client did that but I have not sighted that document as at now, it is the norm for the client to sign.

Q; You have attached Exhibit “1” to your witness statement ‘General Terms and Conditions for Ecobank Online Service’ was this document made available to the Plaintiff

A: My lord the general terms and conditions are made up of two parts. One for the individual and the second for companies. These terms and conditions are made available to our customers. Anytime a customer applies to be set up our terms and conditions are attached to the request, which is the norm.

Q: It is your evidence that these terms and conditions can be found on your website, is that not so

A: Yes my lord

Q:  However you cannot confirm to this court that these terms and conditions were handed over to the Plaintiff

A: No my lord I cannot confirm that but it is a norm for it to be done.

Q: You will agree with me that this terms and condition is a rule that governs the online banking services that you offered to the Plaintiff

A: I agree that our terms and conditions governs the operations of our internet banking services.

Q: You have attached Exhibit “1” to your Witness Statement, Exhibit “1” bears no signature, is that not so

A: Yes my lord

Q: Exhibit “1” has no validity period, no date of commencement and no date of expiration, is that not so?

A: My lord that is correct. As per Exhibit “1” section 10 and 10.1 that is (witness reads) clarifies my answer.

Q: So you see, one cannot confirm whether Exhibit “1” is applicable to the agreement between the Defendant and the Plaintiff with respect to the online services.

A: My lord I am certain that our terms and conditions which is also available on the internet is applicable to our dealings with the Plaintiff.

Q: You will agree with me that generally speaking the terms and conditions of every agreement must be executed up by the all the parties involved.

A: I do not agree

Q: What you want this court to believe is that one party can impose the terms and conditions of agreement upon the other party without his or her consent

A: That is incorrect. Our terms and conditions are available to the general public. And once the client reads and understand we then set the client up.

Q: You have come to this court exhibiting the purported terms and conditions of your online banking services yet you have woefully, willingly failed, refused to demonstrate a copy of the signed online agreement between the Plaintiff and the Defendant.

A: That is incorrect….

Q: As a bank you have the details of every transaction that takes place on the Plaintiff’s account.

A: That is correct

Q: The bank is in the position to tell the details of a recipient or beneficiary of a particular transaction, is that not so?

A: That is correct, we will know.

Q: The transactions that the Plaintiff is complaining off, have you investigated who the beneficiaries of these transactions are

A: Yes my lord we have.

Q: Have you made the outcome of your investigations available to this court

A: Yes my lord.

Q: Where is the outcome of your investigations regarding the transaction the Plaintiff is complaining that he did not authorise, tell the court

A: The report is supposed to be Exhibit “2” but I did not file it.

Q: You agree that by the nature of the relationship between bank and the Plaintiff, the bank owes the Plaintiff a duty to protect its interest.

A: That is correct. However, the security of all our internet banking arrangement depends on both parties to exercise a lot of caution and care with information.”

 

[30] The Cross-examination continued on July 18, 2018 and the following evidence was further elicited from the Bank’s witness, Mr. Asamani:

Q: Your bank was officially informed by the Plaintiff that some unauthorized debit transaction has been effected from the Plaintiff’s account, is that so

A: That is correct

Q: Subsequently part of this transaction were reversed, is that so?

A: That is correct

Q: You will agree with me that the Plaintiff has the right to debit his account but does not have the right to credit his own account, is that not so

A: That is incorrect

Q: So are you saying that the Plaintiff on his own can increase the credit balance of his account.

A: That is correct

Q: Based on the complaints brought to your notice by the Plaintiff, isn’t curious to the bank that the transactions complained of part of it has been reversed

A: No my lord

Q: Did your bank investigate the subsequent reversal of part of the amount complained of by the Plaintiff

A: Yes my lord

Q: What was the outcome of your investigations?

A: My lord I may not be able give the entire issues that were detailed in the report, however, I recall that an amount of 5,000 dollars were transferred outside the country and an amount of 3099 dollars was transferred within. I also recall that an amount of approximately 4,500 dollars were reversed back into the account. The reversal was as a result of the receiving account was not active and also I recall that the second transfer was from a forex to a foreign account which was not allowed by Bank of Ghana so such monies were returned to the account. The result of the investigations were made available to the Plaintiff.

Q: Who undertook the reversal, is it the Plaintiff or the Defendant?

A: I do not know.

Q: Can the Plaintiff reverse a transaction on his online account?

A: No”

 

[31] The Defendant also called Berthold Paa Joe Gadagbui. He also works with the Cards and Electronic Banking department of the Bank. He said he is one of the sales Officers in charge of Internet banking and Mobile banking. His evidence did not relate to the facts of the case at bar but generally how the internet program should work. He tendered as Exhibit “3”, a document titled “Ecobank Retail Internet Banking User Guide”. He confirmed that when he was cross-examined.

“Q: You will agree with me that your entire evidence in chief does not directly respond to any of the issues raised by the Plaintiff.

A: My Lord I know some of my colleagues were involved in the case but I came to speak about how the Ecobank Internet Service Banking works.

Q: Are you aware of the complaints made by the Plaintiff regarding unauthorized transactions from the Plaintiff’s account?

A: Yes my Lord, I read through the extracts of the Court’s proceedings.

Q: Did your bank investigate the Plaintiff’s complaints?

A: Yes my Lord. That was handled by our Security and Investigation Department.

Q: Were you part of the investigative team?

A: No, my Lord”.

Based on all of the above testimony the Defendant urged on the Court to dismiss the Plaintiff’s suit.

 

vi. The Court’s Opinion & Analysis:

[32] I start my analysis by stating that I have referred to many parts of the testimonies heard and the cross-examination because the resolution of the dispute between the parties is fact driven. I also wish to state that having reviewed the legal submission of Counsel I am of the respectful view that the Defendant’s Counsel submissions reflects the defence put up in this case. In my respectful opinion however, though the Defendant says based on the terms and conditions of the Internet banking the Plaintiff had the obligation to protect the sanctity of its online operation and says what happened was the fault of the Plaintiff it failed to tell the Court how the authorization was given by the Plaintiff and who approved the said authorization. To my mind even though it is true that Salemok had an obligation to protect its password that did not take away the Bank’s primary obligation as the operator of the system. To my mind, the Bank’s defence clearly demonstrated how the system ought to work. The question is, did the system work in this case? I shall expand on this later in this judgment.

 

vii. Findings of Fact & Evaluation of Evidence:

[33] From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and also having read the written submissions filed by Counsel, I make the following findings of fact having subjected all the evidence on record to critical evaluation and analysis. It is my finding that:

i) The Plaintiff had two accounts with the Defendant’s Bank located at the Silverstar Tower, Accra.

The Accounts were Dollar and Cedi accounts.

ii) There were withdrawals from the Plaintiff’s account between December 22 and 24, 2014 through the online banking system. A report was made to both the Bank and the Police and according to the Bank, an investigation was conducted. I also find as a fact that the Plaintiff’s account was credited with some of the amounts withdrawn from its account by the Defendant;

iii) I also find as a fact that the Defendant did not provide the Plaintiff and the Court with a copy of the investigation report into the withdrawals.

iv) I further find as a fact that one year after the Plaintiff subscribed to the Bank’s internet service it did not operate it and so it became dormant until the Bank notified it by email to reactivate it.

 

[34] I now proceed to consider the issues set down but I wish to re-state the first issue because in my view, all the issues can be resolved under the following main issues:

i. Whether or not the Plaintiff authorized the withdrawals on the accounts between December 22nd, 2014 and the subsequent days?

ii. Whether or not there has been previous unauthorized wire transfers from the Plaintiff’s account.

Did Salemok authorize the withdrawal from its account between December 22 and 24, 2014 and the days which followed?

 

[35] From the evidence, Salemok’s position is that after subscribing to the online banking service, it did not use it for any transfer as it found the traditional way of banking more convenient and appropriate. It therefore emphatically denied that it authorized the transactions which it says were unusual based on its operation history with the Bank. The Defendant said there was nothing unusual about the transactions and contends they were authorized by the Plaintiff. Having heard the evidence and reviewed the exhibits, I have no problem dismantling the defence pillars erected by the Bank.

 

[36] First and foremost, after reviewing Exhibit 2, I am of the respectful opinion that Mr. Asamani’s evidence based on the issue is much ado about nothing. As I understand it the Bank tendered Exhibit 2 to counter the Plaintiff’s evidence that it did not receive any SMS Alert of the impugned transaction (s). The Defendant’s say the Plaintiff did. To my mind, yes, Exhibit 2 confirms that an SMS Alert was sent to the Plaintiff’s telephone number provided but it only confirms the amount of money charged by the Bank as a result of the transaction but it does not capture any alert sent when the said amount was withdrawn, to whom it was sent and who withdrew same. As I understand it the Plaintiff says based on the agreement it ought to have received an alert that “x amount” of money has been withdrawn from its account but that is not the situation and I agree with the Plaintiff. Exhibit 2, to my mind fails to answer the main issue raised by the Plaintiff.

 

[37] Secondly, it is my holding that the Defendant’s failure to disclose the so-called investigative report of the incident is fatal to the Defendant’s case. This is because the Defendant’s main witness, Mr. Asamani told the Court that the transactions were authorized by the Plaintiffs, though the Plaintiffs have vehemently denied the assertion. To that extent, since it is the Defendant which is saying so, it is trite that it had to prove that by cogent evidence See BANK OF WEST AFRICA LTD. V. ACKUN [1963] 1 GLR 176@181. By failing to provide the Plaintiff and the Court with the said report, I have no option than to hold that no such report exist and/or if it does exist it has no incriminating evidence against the Plaintiff. I therefore hold that there is no evidence that the Plaintiff authorized the said transactions.

 

[38] From the evidence before the Court I also agree with the Plaintiff that the withdrawals at the centre of this litigation were unusual. Although the parties did not provide the Court with bank statements of the Plaintiff of at least six months prior to the December 2014 transactions, a review of Exhibit “B” shows that the transactions authorized by the Plaintiff were all carried out by cheque. The only transfers on the Bank Statement are those the Plaintiff challenges and are the subject matter of the litigation. Also, by Exhibit “C”, the Managing Director stated emphatically that:

“Sir/Madam, we wish to state that, even though we have registered for such services (Internet Banking). We have never done any transaction with it, again our business does not call for any money transfer, all money movement from that account are only to pay cheques or move money to our GT Bank Account. So therefore, we are surprise to find out this”.

To my mind this was eloquently and emphatically put. To impeach it to my mind requires more than a say so of a witness that the Plaintiff authorized the transaction.

 

[39] On cross-examination, it appeared that Mr. Asamani was guessing at some of the evidence. For example, speaking about the said investigative report he said "my lord I may not be able give the entire issues that were detailed in the report, however, I recall that an amount of 5,000 dollars were transferred outside the country and an amount of 3,099 dollars was transferred within. I also recall that an amount of approximately 4,500 dollars were reversed back into the account”. In my respectful opinion it is improbable that the Defendant would have reversed any part of the transaction if indeed they were authorized by the Plaintiff. Based on the evidence, I find that Salemok did not authorize the withdrawals from its account through its online banking in the manner that it occurred.

Did the Bank breach its contract with Salemok or is it guilty of negligence in handling Salemok’s account in this matter?

 

[39] Negligence in law, has been defined to mean:

“…the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.[1]

 

[40] Although, the Plaintiff did not call any expert evidence with respect to what the customary practice of a bank should be under similar circumstances. Mr. Asamani, an officer of the Bank, gave evidence in defence of the Bank and was cross-examined. To reiterate this is part of what he said:

Q: As a bank you have the details of every transaction that takes place on the Plaintiff’s account.

A: That is correct

Q: The bank is in the position to tell the details of a recipient or beneficiary of a particular transaction, is that not so?

A: That is correct, we will know.

He confirmed that the Bank is in a position to see and in effect ‘police’ all transactions that takes place on any particular account. From the evidence, there is no history of any previous transaction online by the Plaintiff as per Exhibits “B” and “C”. In my respectful opinion based on the history of the Client (Plaintiff) the wire transfers were indeed unusual and therefore it was necessary for the Bank to weigh the day-to-day volume of transactions of the Plaintiff. To my mind there was the need for the Bank to block the account even if momentarily and to contact the Plaintiff as a client. The money in the Plaintiff’s account ostensibly are its property and therefore the Bank had the duty of care to afford the Plaintiff as its customer the required protection in relation to the Bank's contractual duty of care.

 

[41] In the case of KARAK RUBBER COMPANY v. BURDEN, [1972] 1 W.L.R. 602, [1972] 1 All E.R. 1210, a case in which authorized signatories for a customer defrauded the customer of a bank, at page 1231, Brightman J. stated that it is necessary to weigh the day-to-day volume of transactions with which a bank has to cope and the need to make quick decisions in a matter of honouring clients' bills of exchange which ostensibly are properly drawn, with the duty of care which the Bank must afford its customers. He indicates, at page 1232 (All E.R.) that the following matters should be considered in relation to the bank's contractual duty of care:

(1) First and foremost whether the operation was unusual and out of the ordinary course of banking business, (2) the magnitude of the transaction, (3) the time and opportunity available to the bank for making an inquiry, and (4) the degree of suspicion which the known facts would have provoked in the mind of a reasonable banker.

 

[42] Brightman J. further stated at page 1231 (All E.R.):

The proper question, in my view, which should supposedly be put to paying banker and customer, in a case such as the present, is whether the banker is to exercise reasonable care and skill in transacting the customer's banking business, including the making of such enquiries as may, in given circumstances, be appropriate and practical if the banker has, or a reasonable banker would have, grounds for believing that the authorized signatories are misusing their authority for the purpose of defrauding their principal or otherwise defeating his true intentions.

 

[43] Undoubtedly, Mr. Justice Brightman spoke in an era where cheques and other bills of exchange were the order of the day. There is no denying the fact that the internet has brought in its wake a ‘revolution’ and banks are caught into it. Having embraced it I am of the respectful view that proper checks ought to be put in place to protect clients account well. In the case at bar, we are not dealing with an authorized signature on a cheque but an online transaction. Surely in my view the duty of inquiry is greater especially when a particular account does not have the history of doing business online.

 

[44] In this case, it is my view that the Bank did not meet the criteria of a reasonable banker when directing its mind to approving the online wire transfer of the various transactions conducted between December 22, 2014 and December 24, 2014. From the history of the Plaintiff’s account an ordinary withdrawal from the Salemok’s account would have been by way of cheque, in which case it would ordinarily have been incumbent on the Bank to check the signatures etc to be sure that the appropriate signator had signed the cheque as maker. There is no evidence that online wire transfer from a third party/client of the Plaintiff are frequently made on the account. To have allowed the various transactions within a short space of time and the amount involved was certainly without due diligence and proper care. In my view the Bank should have done at least one or the other of two things: (a) it should have either telephoned Salemok officers to verify the authorization or, (b) it should have indicated to Salemok immediately after the initial withdrawals that a wire transfer had taken place on its account. The Bank has not established any urgency for the transfer that would have precluded such inquiry. The end result is that I find the Bank to have been negligent in making the transfer of funds without notification to the Plaintiff.

 

viii. Conclusion & Disposition:

[45] Based on all of the evidence, I shall grant the Plaintiff its claim endorsed on the writ of summons and also award it an amount of GH¢10,000 as damages for negligence against the Defendant. I also do hold that the Plaintiff is entitled to interest at the prevailing Bank lending rate from December 22, 2014 till date of final payment. This is because on the authorities, the rationale for the award of interest on a judgment debt is that if the judgment debtor had paid the money at the appropriate commercial time, the creditor would have had the use of it.

 

[46] Accordingly, the interest was really meant as compensation for what the Plaintiff had lost from the due date. See: HELOO v. TETTEY [1992] 2 GLR 112-129, AMARTEY v. SOCIAL SECURITY

BANK LTD. AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A. and the Supreme Court case of UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861.

 

[47] Having succeeded in proving his claim, I shall award the Plaintiff Cost of GH 8,000.00 against the Defendant.

 

 CASES REFERRED TO

ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774

ZABRAMA V. SEGBEDZI. [1991] 2GLR 221.

ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728

BANK OF WEST AFRICA LTD. V. ACKUN [1963] 1 GLR 176@181

BLYTH V BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781

KARAK RUBBER COMPANY v. BURDEN, [1972] 1 W.L.R. 602, [1972] 1 All E.R. 1210 HELOO v. TETTEY [1992] 2 GLR 112-129

AMARTEY v. SOCIAL SECURITY BANK LTD. AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A.

UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861

 

[1] Blyth v Birmingham Waterworks (1856) 11 Exch. 781 Baron Alderson held in the case that the standard demanded is thus not of perfection but of reasonableness. It is an objective standard taking no account of the defendant’ incompetence – he may do the best he can and still be found negligent.