IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
AMA TABUAH - (Plaintiff)
BARCLAYS BANK GHANA LIMITED - (Defendant)
DATE: 3 RD MAY, 2018
SUIT NO: BFS/201/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COUT
IBRAHIM ANYARS BAWA FOR PLAINTIFF
STEPHEN KOOMSON FOR FREDERICK OWUSU-ASARE FOR DEFENDANT br<>
This is a Banker/Customer dispute arising from disagreements in overdrawn balances, debit advice, transfers and withdrawals with improper narrations on the Plaintiff’s current account with the Defendant bank. The original suit was filed on 17/02/2015, but on 08/02/2016, the Plaintiff amended her writ of summons and statement of claim. The reliefs she seeks from this court are:
1) The recovery of the sum of GHC 75,000.00 being cash the Plaintiff allowed to be withdrawn from Defendant’s account between 20/12/2006 and 17/07/2008 in a manner that fell short of acceptable banking practice.
2) The recovery of the sum of GHC 55,770.00 being money lost to the Plaintiff’s account between 4/7/2008 and 23/12/2008 which sum the Plaintiff labelled as “Debit Advice” when the Plaintiff had not sanctioned or authorized any such expenditure on her behalf.
3) The recovery of the sum of GHC 15,700.00 that stood to the Plaintiff’s credit in or about February, 2009 but which sum the Plaintiff purported to freeze on the ground that the Plaintiff was indebted to it to the tune of GHC 53,000.00.
4) The recovery of the sum of GHC 754.00 being a cheque numbered 616082 that Plaintiff accepted for payment out of Plaintiff’s account on or about 8/4/2008 when the said cheque leaf did not come from Plaintiff’s cheque book. The recovery of the sum of GHC 29,000.00 being money Plaintiff transferred to accounts number 032/1189903 at different times between 13/12/06 and 12/01/07 without the knowledge and/or approval of the Plaintiff.
5) Interest on the sums of money stated in (a) – (e) supra at the current Bank of Ghana Commercial lending rate.
6) Recovery of the lease covering Plaintiff’s property House No. Plot 17, 4th street, Asokore Mampong the Plaintiff used to secure the loan or overdraft facility of GHC 50,000.00 which loan or overdraft facility was never made available to the Plaintiff.
7) Cost including solicitor’s fees.
THE PLAINTIFF’S CASE.
The Plaintiff who describes herself as a businesswoman in the fish industry alleged that she operated a current account numbered 1212402 with a branch of the Defendant bank in Kumasi. Per the nature of her trade, she averred that frequent deposits were made into her account in Kumasi, she then made withdrawals in Tema as needed to pay for the fish she purchases. In the course of time, she was informed by the bank that she had had persistently overdrawn her account even though she reasonably believed that she had sufficient funds to cover the cheques she issued. The Defendant bank therefore approved of an overdraft of GHC 50,000.00 in her favour. The Plaintiff alleged that this money was not given to her physically because she was told by the bank that it had been used to reduce her overdrawn position. All these happened between 2006 and 2009. The Plaintiff averred that she engaged a person with accounting background to review her account on 15/05/2014. At the end of it, she alleged that various withdrawals totaling GHC 75,000.00 had been made on 20/12/06 and 17/07/08, without her knowledge. That apart, she also contended that between 13/12/06 and 31/01/06, there was a transfer of GHC 29,900.00 from her account to account number 032 118903 without her knowledge. Besides these unauthorized debits and transfers, the Plaintiff pleaded that some deposits she made were not credited to her account on the same day, and this contributed to her overdrawn position. Since the Defendant was in possession of her lease, the Plaintiff averred that she had to obtain a loan from another bank, using a third party security at a cost to her. She also contended that the Defendant has perpetrated fraud on her, and gave particulars to that effect in paragraph 33 of her amended statement of claim. The Plaintiff again averred that the Defendant on 28/12/2012 instituted an action against her for the recovery of the sum of GHC 53,594.88 and interest thereon at the rate of 32.5% per annum, but the Defendant abandoned the case.
THE DEFENDANT’S CASE.
The Defendant bank denied the assertions made by the Plaintiff. Its position is that the Plaintiff’s account is subject to all internal rules, processes and procedures at the bank and no payments were made without the correct mandate of the Plaintiff, neither did it make a payment on a cheque leaflet not belonging to the Plaintiff. With regards to the overdraft facility, the Defendant bank averred that the same was granted to the Plaintiff in the year 2009 on terms and conditions to regularize her overdrawn position. The Defendant contended that if the Plaintiff had to secure a loan from another bank, that was her own private arrangement, but the Defendant bank has conducted itself to the highest level of professionalism. The Defendant’s response to the earlier suit which the Plaintiff made reference to is that the same was struck out for want of prosecution without notice to the Defendant which was an irregularity, and maintains the position that the Plaintiff is still indebted to the Bank.
The Defendant then counterclaimed against the Plaintiff as follows:
1) A declaration that the action discloses no reasonable cause of action, is frivolous, vexatious and an abuse of the process of the court.
2) An order dismissing the Plaintiff’s claim in limine.
3) An order for the payment of the sum of GHC 53,594.88 the balance due and owing on account of overdraft facility extended by the Plaintiff and repayment of which the defendant has refused to make good despite repeated demands.
4) Interest on the said sum at the rate of 32.5% per annum from December, 2012, till date of final payment.
5) Costs including solicitor’s fees assessed at 10% of the aggregate sum due and payable under the facility.
6) Alternatively, an order for the judicial sale of Plot Number 17, 4th Street, Section 5 Asokore Mampong layout Charged to the Plaintiff as security for the repayment of the overdraft facility.
ISSUES FOR TRIAL.
The issues which were adopted for trial are:
1. Whether or not the Defendant has perpetuated fraud on the plaintiff?
2. Whether or not the defendant is indebted to the plaintiff in the sum claimed?
3. Whether or not the plaintiff’s action is statute barred?
4. Whether or not the defendant is entitled to its counterclaim?
The court determined the issue as to whether the plaintiff’s suit is statute barred as a preliminary issue to pave the way for the trial. In effect, there are three outstanding issues to be determined.
THE BURDEN OF PROOF
The Evidence Act, 1975 N.R.C.D. 323, sections 11(4) and 12 provide for the nature and degree of proof in civil suits as follows:
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
Section 12. Proof by a preponderance of the probabilities
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
The principle of proof in civil suits cannot be discussed without reference to the case of Majolagbe v.Larbi (1959) GLR 190 where Ollenu J. (as he then was) stated:
Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. , by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.
This principle of proof was further explained by Kpegah JA (as he then was) in the case of Zabrama v. Segbedzie (1991) 2 GLR 221 thus:
The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.
The Supreme Court in Ackah v. Pergah Transport Ltd & Ors (2010) SCGLR 728 at 736 also stated the law lucidly as follows:
It is a basic principle of the law of 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 must fail.
In the Ackah v. Pergah Transport Case referred to supra, the court further explained that:
Methods of producing evidence include the testimonies of the parties and material witnesses, admissible hearsay, documentary and other things (often described as real evidence) without which a party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court.
WHETHER OR NOT THE DEFENDANT HAS PERPETUATED FRAUD ON THE PLAINTIFF.
In line with the foregoing principles and rules of evidence, the Plaintiff bears the onus of proof on the issue as to whether the Defendant has perpetuated fraud on her. These are the particulars of fraud which the Plaintiff is to prove:
1) Failing to credit Plaintiff’s account as soon as she made a deposit but doing so after 2 or 3 days every time.
2) Forging “Debit Advice” when Plaintiff had not requested the Defendant to debit her account or make any expenses on her behalf.
3) Accepting cheque withdrawals from Plaintiff’s account with no proper or sufficient narration accompanying each cheque.
4) Accepting for payment a cheque that did not emanate from the plaintiff’s cheque book.
5) Approving a loan or overdraft facility of GHC 50,000.00 for the Plaintiff when it had no real intention of passing same onto her.
6) Refusing to give the Plaintiff a bank statement when she requested for same.
At the trial, the Plaintiff did not testify, but called one witness to prove her case. Gabriel Owusu Ansah, PW1, told the court that the Plaintiff approached him because she could not comprehend her relationship with the Defendant bank. PW1 told the court that based on transactional information on the account given to him by the Plaintiff, he studied the bank statements, cheque books and cash deposit booklets given to her by the Defendant. PW1 said he discovered that the Defendant collected cash from the Plaintiff’s shop but credited the same to her account between two to four days. Because the Plaintiff knew that those monies had been credited to her account, she issued cheques and the Defendant honoured the same even though the monies had not reflected in her account. The net effect was that the Defendant was making payments on behalf of the Plaintiff through no fault of hers, and those overdrawn payments attracted charges from the Defendant which accumulated to GHC 55,770.00 over time. According to PW1, the Defendant described those transactions in the Plaintiff’s bank statement as “Debit Advice”, but the Plaintiff never requested for any such services from the Defendant to justify taking any money from her.
PW1 also testified that between 20/12/2006 and 17/07/2008, certain withdrawals were made from the Plaintiff’s account to the tune of GHC 75,000.00 with no proper narrations such as particulars of the payee as follows:
The witness said he also discovered from the Plaintiff’s bank statement that between 13/12/2006 and 31/01/2007, various cash transfers totaling GHC 29,000.00 were made from the Plaintiff’s account to accounts numbered 031 118 9903 or 1189903, without the Plaintiff’s mandate. These are the details he gave on oath: 13/12/06- GHC 5,400.00; 12/01/07- GHC 10,200.00 and 31/01/07- GHC 14,300.00. According to PW1, the Plaintiff said she has no knowledge of those account numbers and transfers. Concluding, PW1 tendered in evidence a print out of his findings and the Plaintiff’s Bank statements as exhibits A and B series.
A Recoveries Officer of the Defendant gave evidence on its behalf. In defence to the allegation of fraud as a result of which the Plaintiff claims to have lost various sums of money, the Defendant’s representative told the court that the Plaintiff had subscribed to telephone banking, so she was immediately informed of any transactions affecting her account. She also took bank statements and had knowledge of the transactions but raised no issue with the Defendant. The Defendant further said in evidence that as a business woman, the Plaintiff had to do a reconciliation of her Bank account with her cash book at least every financial year, but she sat by unconcerned, and until about 05/05/2014, when she engaged a person with an accounting background as indicated in her pleadings. Even if her allegations of fraud were true, the Defendant’s position is that the Plaintiff was not diligent, and that claim of fraud is an afterthought calculated to delay repayment of her indebtedness to the Defendant.
Referring to exhibit ‘1’, the Defendant’s representative said the Plaintiff never complained of the fact that the Defendant bank allowed her to overdraw her balance on 17/10/2007, 26/10/2007, 30/10/2007, 21/11/2007, 29/11/2007, 06/12/2007 and 10/12/2007 to sustain her business and save her the embarrassment of her cheques being dishonoured. At a point in February, 2008, the Defendant’s representative said the Plaintiff’s account recorded recurrent overdrawn balances and it was as a result of this position that the Defendant decided to formalize the overdrawn balances and to secure its interest. However, by 05/05/2008, the Plaintiff’s account had been restored to a positive balance of GHS 1,478.98 because of the deposits made by her (see paragraph 13 of the witness statement of George Osei), but the account was overdrawn again. Thus, on 19/05/2008, at the request of the Defendant, the Plaintiff executed and registered a mortgage in favour of the Defendant, duly stamped as LV/ASR/1384/2008, exhibit ‘2’. According to the Defendant’s representative, the Defendant bank has no record of any deposit of GHC 28,000.00 made by the Plaintiff in May, 2008.
Then, in 2009, the Defendant bank granted an overdraft facility of GHC 50,000.00 to the Plaintiff upon terms contained in a facility letter dated 09/02/2009, exhibit ‘3’. This facility, according to the Defendant’s representative, was accepted by the Plaintiff. Per the facility letter, the Plaintiff was required to secure repayment of the sums she had overdrawn or monies to be overdrawn in terms of exhibit ‘2’. The Plaintiff, according to the Defendant, utilized the overdraft facility, and as at December, 2013, she owed the Defendant the sum of GHC 53,394.88 plus GHC 800 spent on valuation of the mortgaged property, bringing her total indebtedness to GHC 54,394.88. The Defendant conceded that an earlier suit it filed to claim this sum was struck out for want of prosecution, but the reliefs therein are essentially the same as those contained in its counterclaim before this court. With regards to the transfers made on 13/12/06, 12/01/07 and 31/01/07, the Defendant tendered the exhibit 6 series to prove that those transfers were made by the Plaintiff into the account of Nyame Yie Cold Stores with Barclays Bank (GH) Ltd Account No. 1189903, which is the same account referred to by the Plaintiff.
The Defendant’s representative also made it known to the court that transaction documents like cheques, transfer forms and debit advice are retained by the bank for a period of six years after the date of the transaction. A copy of that policy statement was put in evidence as exhibit ‘7’. The Defendant’s representative therefore prayed the court to grant the Defendant’s counterclaim. In his closing submissions filed in this court, counsel for the Plaintiff argued that the Defendant’s representative had no notice of any discussions between the Plaintiff and the relationship manager of the Defendant whereby exhibit ‘2’ was executed to secure her overdrawn position. Counsel submitted that the Defendant’s representative engaged in mere conjecture, but the relationship manager at the time who could speak to the events which actually occurred was not called as a witness by the Defendant. Zabrama v. Segbedzie cited and relied on. Concluding, counsel argued that exhibit ‘2’ was fraudulently executed to cover up the Plaintiff’s overdrawn position which the Defendant fraudulently permitted to go on without her notice, to the sole benefit of the Defendant. In counsel’s opinion, the Plaintiff has discharged her burden of adducing credible evidence to establish that the Defendant perpetrated fraud against her. For the Defendant, counsel commenced his final address with a statement in the case of Dzotepe v.Hahormene III (1987-88) 2 GLR 681 at 701 thus:
The judicial edifice was not construed to lend ear to every cry of fraud from suitors who had lost on the merits. If charges of fraud are not examined closely, the stratagem would subvert the very administration of justice and undermine the hallowed principle that a victorious party is entitled to the fruits of his judgment and should not be deprived of his victory without just cause. In effect, fraud must be clearly set out and effectively established.
Counsel for the Defendant submitted that the Defendant has no record of a deposit of GHC 28,000.00 made by the Plaintiff, an indication that no such deposit was ever made. And, flowing from the Plaintiff’s recurrent overdrawn positions from May, 2008, the Defendant agreed with the Plaintiff to formalize the overdrawn position so as to secure its interest. This offer was accepted by the Plaintiff and she duly utilized the overdraft facility which has led to her debit balance. Counsel further submitted that the Plaintiff has failed to prove beyond reasonable doubt as required by section 13(1) of NRCD 323, that the Defendant has perpetrated fraud against the Plaintiff. He invited the court to dismiss this action with punitive cost. In the dictionary of Law by LB Curzen, 5th ed. 1998, page 162,
Fraud at common law is defined as:
Intentional deceit. A false representation by the Defendant of an existing fact, made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false, with the intention that the Plaintiff should act on it, and which results in damage to the Plaintiff.
The law is that fraud must be specifically pleaded and particularized. In Kangberee v. Mohammed (2012) 51 GMJ 173 at 179, Dotse JSC stated that:
for anyone to succeed with a serious allegation like fraud which has the tendency to vitiate acts done regularly, the particulars which must be pleaded, must also be proven.
On the nature of proof of fraud, the court of Appeal in Re Agyepong (decd); Poku v. Abosi (1982-83)
GLR 254 held, inter alia, that:
fraud must not only be pleaded but clearly and distinctly proved by the man who alleged it. Fraud in civil proceedings required a higher standard of proof than an ordinary civil matter: there must be proof of criminal deception.
See also Osei Ansong & Anor v. Ghana Airports Company Ltd Civil Appeal No. J4/24/2012 dated 23RD January, 2013 , where the court held that , fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the courts.
In the case at hand, the Plaintiff did well by giving the particulars of the alleged fraudulent acts. It is to be noted that the business of the Defendant bank is carried out by its officers, servants or agents. So, any reference to fraudulent acts by the Defendant bank implies that any of its officers, servants or agents has acted fraudulently in the performance of their official duties, and as the authorities have shown, such allegations must be proved beyond reasonable doubt by the Plaintiff, in this case, through her witness. (sec 31(1) of NRCD 323). It is apparent on the face of the bank statements, exhibit ‘B’ of the Plaintiff; and exhibit ‘1’ of the Defendant, which is more detailed, that the Plaintiff persistently overdrew her account but made subsequent deposits to regularize the overdrawn position. By 05/05/2008, she had a credit balance of GHC 1,478.98, but issued various HSE cheques which exceeded the subsequent deposits made, such that the overdrawn positions continued for a long period. From exhibit 1, as at 19/05/2008 when exhibit ‘2’ was executed, the Defendant’s overdrawn position was GHC 49,939.02. Again, the deposits did not match up with the debits on the account. After the Mortgage deed, exhibit ‘2’, was executed, the Plaintiff continued to overdraw her account. Did the Plaintiff appreciate the recurrent overdrawn position on her current account? There is an interpretation clause on exhibit ‘2’, and considering how the Plaintiff operated her current account in issue, persistently above her credit balance, it cannot be said that the Plaintiff did not understand or appreciate the contents of exhibit ‘2’.
There is sufficient evidence on record outside the interpretation clause which shows that the Plaintiff was fully aware of her overdrawn positions. Therefore, it was not unusual for her to have executed exhibit ‘2’ to secure the interest of the Defendant bank, even though a formal application for an overdraft was not put in evidence. The Plaintiff has also not disputed that an overdraft facility of GHC 50,000.00 was approved for her. Exhibit ‘3’, dated 09/02/2009, is evidence of this fact. The term overdraft has been recurring throughout this trial and it is important to place it in perspective for a clearer understanding of the transactions on the Plaintiff’s account. In simple terms, an overdraft allows an individual customer of a Bank to continue withdrawing money even if the account has no funds in it or insufficient funds to cover the withdrawal. Put differently, the bank allows or permits the customer to borrow an agreed amount of money upon certain terms.
Erlinger et. al. adequately discussed the prevailing practice in their book, Erlinger's Modern Banking Law, 4th edition at page 689 as follows:
Where a customer who maintains a current account with his bank requires financial accommodation, the Branch Manager, or other authorized lending officer, considers the possibility of granting him an overdraft. In such a facility, the bank authorizes the customer to draw cheques on his account, or to make withdrawals or payments from the account by other authorized means (for example, by debit card or through internet access to the account), up to a ceiling which may not be exceeded at any one time. As amounts are paid to the credit of the account, the available balance of the overdraft increases. As cheques are drawn by the customer and paid by the Bank, or funds are transferred out of the account by other authorized means, the balance decreases ...
The learned authors also extensively discussed the legal nature of an overdraft page 690 thus:
It is well established that, from a legal point of view, an overdraft is a loan granted by the bank to the customer. A Bank is obliged to let its customer overdraw only if it has contractually undertaken to do so. Thus, where the customer gave his bank a document of title as security for an advance he was promised, the bank was held bound to stand by its commitment. The giving of the security was adequate consideration for the bank’s undertaking. Unless the Bank has undertaken to grant an overdraft, where there were insufficient funds credited to the customer’s account to cover the full amount of the customer’s payment order, the bank may ignore the order completely. In such circumstances, the customer’s payment order, for example, a cheque drawn by him on his account, stands as an offer to the Bank to extend credit to him on the Bank’s usual terms as to interest and other charges. The Bank has the option of accepting or rejecting this offer, but will be deemed to have accepted it where it executes the customer’s payment order, for example, by honouring the cheque.
As already established by the Defendant, it allowed the Plaintiff to overdraw its account over a period of time as shown in exhibit ‘1’. Obviously, this benevolent act of the Defendant did not preclude it from charging the prevailing interest and other charges and debiting the same to the Plaintiff’s account.
The Defendant’s reliance on the Plaintiff’s subscription to telephone banking as a defence is not a viable defence at all. Telephone banking is a product which a customer chooses to subscribe to. The court has taken judicial notice of the poor telephone and internet network connectivity at various times which can be really frustrating to subscribers. Given those unpredictable conditions, it cannot be entirely correct to say that all transactional text messages were duly received by the Plaintiff as soon as the transaction occurred. What the defendant is making the court to accept is a mere rebuttal presumption, and the Defendant has not been able to introduce any cogent and credible evidence to show that the Plaintiff in fact received all the transactional details on her current account via phone or text messages. But then, it was the sole responsibility of the Plaintiff to reconcile her account, or cause the same to be reconciled by a professional at short intervals, given the nature of her business to enable her know the true position of her account with the Defendant Bank, as common sense and good business practices demand.
So long as the Plaintiff continued to present cheques for encashment or to be drawn on her account, when she knew or ought to have known of the insufficient funds in the account; and so long as the Plaintiff continued to honour those cheques, a cause of dealing had been created between the parties by which the Defendant had informally accepted to give ad hoc overdrafts to the Plaintiff and she also continued to utilize the same. This practice is not alien in normal banking practice and does not constitute fraud. Again, at the time the Defendant caused the Plaintiff to execute exhibit ‘2’, the deed of mortgage, the Plaintiff’s account already had a debit balance as a result of her act of persistently overdrawing her account. So the bank did not perpetuate fraud on the Plaintiff by asking for a security to protect its interest. On the face of exhibit ‘2’, it was a continuing security for the existing and future overdraft facilities utilized or to be utilized by the Plaintiff. Therefore, the submissions of counsel for the Plaintiff that exhibit ‘2’ was fraudulently obtained from the Plaintiff is untenable.
The Court also finds from exhibit ‘1’, that by 09/02/2009 when the Defendant formally approved for the Plaintiff an overdraft facility of GHC 50,000.00, exhibit ‘3’, her account already had a debit balance of GHC 8,901.11. Even though the Plaintiff signed exhibit ‘3’ on 11/02/2009, three cheques totaling GHC 67,000.00 had been drawn on the account by that date. Meanwhile, cash deposits totaling GHC 34,550.00 were made on the Plaintiff’s account such that the balance brought forward by 11/02/2009 was a debit of GHC 41,351.11. The evidence of PW1 that the Plaintiff was encouraged to take a loan of GHC 50,000.00 which was not physically given to her is not supported by the evidence. The true position, as argued by counsel for the Defendant is that, the Plaintiff, after enjoying the ad hoc overdrafts, was formally granted a GHC 50,000.00 overdraft facility which she duly utilized over a period of time and all these have reflected in her bank statement, exhibit ‘1’. Another ground of fraud pleaded by the Plaintiff is “forgery of debit advice” arising from charges debited to the Plaintiff’s account from the “unauthorized overdrafts”.
The Learned authors of Erlinger’s Modern Banking law continued at page 691 that:
Allowing the customer to run up or increase an overdraft in this ad hoc manner may create a cause of dealing that binds the Bank so that it must give reasonable notice of any change of practice. The customer may be charged interest at a higher rate, or incur higher bank charges, if his account is overdrawn, or an existing overdraft limit is exceeded, without the bank’s prior agreement.
“Forgery” and “Fraud” are not the same, even though both connote some criminality. When a crime is alleged to have been committed in a civil suit, the degree of proof moves to the level of “proof beyond reasonable doubt” as in criminal cases. This is provided for under section 13(1) of NRCD 323 thus:
In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.
The evidence offered by PW1 in support of the forgery allegation can be seen in paragraphs 10 to 13 of his evidence –in-chief (witness statement). In sum, PW1 said cash collected by the Defendant’s officers from Plaintiff’s shop were credited two to four days later, and by the nature of her business, she knew her account would be credited on the same date as the monies are collected so she was issuing various cheques when in fact there were insufficient funds in the account through no fault of the Plaintiff. The Defendant bank has denied that its officers did any such cash collections from the Plaintiff to be deposited in her account. Whenever cash is to be deposited in a customer’s account, a cash deposit slip or a pay-in-slip is to be filled out by, or on behalf of the customer. The court takes judicial notice of the standard banking practice that the customer is always given a copy of such cash deposit or pay-in-slips. By paragraph 9 of the witness statement of PW1, he testified that he made his findings based on bank statements, cheque books and cash deposit booklets given to the Plaintiff by the Defendant.
Apart from a printout from the ledger account of the Plaintiff, PW1 did not tender any cheque books, whether used or unused, neither did he tender any cash deposit booklets, which serves the same purpose as the cash deposit slip. At least, if the cash deposit booklet had been tendered, the court would have been in the position to compare the dates of deposits recorded therein to the dates monies were actually credited to the Plaintiff’s current account in the Defendant’s system, and which would have reflected on the Plaintiff’s bank statement. To the extent that this vital document was suppressed from the court by the plaintiff who seeks to rely on entries therein to advance her case, her assertion as well as the evidence of PW1 that monies collected from her shop were credited two to four days later is unsubstantiated and indeed doubtful. Further, without tendering all cheque books issued to the Plaintiff by the Defendant, whether unused, or counterfoils from her used cheques, there is no basis for the court to make any finding of fact that a particular cheque which was accepted for payment did not emanate from the Plaintiff’s cheque book. The next ground of fraud is “accepting cheque withdrawals from Plaintiff’s account with no proper narration accompanying each cheque.”
From the evidence of PW1 and the submissions by Counsel for the Plaintiff, the bone of contention is that the Defendant bank failed to state the particulars of the persons who withdrew the monies from the Plaintiff’s account on 20/12/06; 21/12/06; 22/12/06; 02/07/08; 15/07/08 and 17/07/08 (exhibit A). So, I will review the bank statement, exhibit ‘1’, again. After a careful examination, I realise that from the year 2006 until the 2nd week of March, 2008, the Defendant bank’s tellers were not keying in particulars of persons who made cash deposits or withdrawals. The unique cheque numbers of each cheque leaflet presented was not also captured most of the times. During the period under reference, most of the Plaintiff’s transactions were done through the presentation of “HSE cheques” and direct bank transfers. In both situations, the tellers adhered to standard banking practices by indicating the cheque numbers and the account numbers of the receiving bank respectively. This practice continued at least up to the time exhibit ‘1’ was generated. As argued by counsel for the Plaintiff, the Defendant bank is always required to key in the information of persons who make withdrawals from a current account as a fraud preventive measure. Again, this is a requirement from the Bank of Ghana which all banks must adhere to.
Being a current account, the Plaintiff could only make withdrawals with cheques issued to her by the Defendant bank, counter cheques and similar documents mandating the Defendant bank to debit her account by way of withdrawals. A cash cheque emanating from the Plaintiff ‘s cheque book and with her mandate will be treated as a cash withdrawal and entered as such in the bank statement. Every cheque leaflet from a customer’s cheque book has a unique identifying number, this is common knowledge. The reference point for any cash cheque or “HSE Cheque” transaction, as the case may be, will be the unique cheque number which must be captured as part of the narrations or particulars in the bank’s system which will ultimately appear on the bank statement of a customer, so that at the end of the day the customer can use those narrations from the bank statement and the counterfoils in the customer’s used cheque book(s) to do a proper reconciliation. So, in the event that a lousy bank teller who ought to know the standard practices of banking, fails to key in vital details such as the identifying number of a cash cheque presented for withdrawal, or the identifying number on a counter cheque issued to a customer for a cash withdrawal, such entries raise serious questions bothering on the integrity of those transactions.
Again, this leaves room for fraudulent transactions, as it will be difficult to tell from the bank statement the actual person who made the withdrawal. In the case at hand, I have reviewed exhibit ‘1’ thoroughly, and it is obvious that compared to all other entries therein, whoever entered the cash withdrawals on 20/12/06; 21/12/06; 22/12/06; 02/07/08; 15/07/08; and 17/07/08 did not adhere to the banks standard requirement of indicating the reference number of those transactions. Why that sudden deviation from the usual acceptable banking practice? For instance, on 02/07/08, the Plaintiff herself deposited an amount of GHC 4,017.00. On the same day, there was a cash withdrawal of GHC 34,000.00 by an “unknown” person as no name is indicated on the bank statement. This smacks of a fraudulent transaction, together with the others in the same category. By the Defendant’s own showing as in exhibit ‘2’, the Plaintiff is not literate in English language. Again, time does not run when there is an allegation of fraud. Further, entries in a bank statement are not conclusive as they may contain errors that may be detected either by the customer or the bank. In the case of the Plaintiff, so much time has elapsed but she is not estopped from raising any issue of fraud. If the Plaintiff maintains that she did not make those withdrawals, the Defendant bank must prove that she in fact made those withdrawals. The difficulty here is the inability of the Defendant bank to produce the supporting documents with regards to the contentious withdrawals without proper referencing because of the time lapse and the Defendant’s document retention policy.
The Defendant’s policy document of not keeping records of transactional documents beyond six years at the time the transactions complained of occurred between 2006 and 2008, as per exhibit 7, is in line with the provisions of section 24(1) of the Anti-Money Laundering Act, 2008 (Act 749); section 5 of the payment Systems Act, 2003 (Act 662) on retention of documents and section 8(1) of the Electronic Transfers Act, 2008 (Act 772). It has been argued by counsel for the Plaintiff that per section 24(1) of the Anti-Money Laundering Act 2014 (Act 874), there is no time limit on retention of records. With the greatest respect to counsel for the Plaintiff, this is not the correct position of the law. Rather, it is provided under section 8, of Act 874 of 2014 which substituted a new section 24 of Act 749 that records of transactions sufficient to reconstruct each individual or domestic or international transaction for both account holders and non-account holders, copies of suspicious transaction reports, cash transaction reports and other relevant accompanying documents shall be kept for a period of not less than five years.
Act 874 of 2014 cannot retrospectively apply to 2006 and 2008 transactions where documents may have been discarded after the six- year statutory period. In that sense, if the Defendant bank maintains that the records have been discarded, it cannot be faulted. That notwithstanding, it can be found from the evidence before this court that the officer or agent of the Defendant Bank who handled the contentious “CASH WITHDRAWAL” entries, without the corresponding references made those false representations knowingly and carelessly so as to deceive the illiterate Plaintiff about the true state of her current account. That amounts to fraud on the part of the Defendant’s agent or officer who handled the said transactions, especially so, since the recipient of those monies is not known. The court is however satisfied with the Defendant’s further testimony of the transfers made on 13/12/06;12/01/07 and 31/01/07 at the instance of the Plaintiff to account name “Nyame ye Cold Store” who was into the same business as the Plaintiff.
The Plaintiff could, not introduce any cogent evidence to discredit the above piece of evidence. The last leg of the particulars of fraud is “refusing to give the Plaintiff a bank statement when she requested for same”. In the course of this judgment, “fraud” has been defined, how can a mere request and refusal to give out a bank statement amount to fraud? In any case, the Plaintiff has failed to bring to the notice of this court any formal application made to the Defendant bank to be furnished with a bank statement which was refused. I see this as a frivolous ground. Apart from the fraudulent cash withdrawals without proper narrations amounting to GHSC 75,000, I conclude that the Plaintiff has failed to prove the other allegations of fraud and forgery against the Defendant beyond reasonable doubt. Even if the evidence were to be measured on the balance of probabilities, it would not have tilted in the Plaintiff’s favour.
WHETHER OR NOT THE DEFENDANT IS INDEBTED TO THE PLAINTIFF IN THE SUM CLAIMED.
Both the burden of persuasion and the burden of producing evidence of this issue rest on the Plaintiff. The monies which the Plaintiff is claiming from the Defendant under various heads allegedly came about from the fraud and forgery allegations she has made of which only one has been proved, that is, the withdrawals without proper narrations amounting to GHC 75,000.00. This is money which the Defendant must refund to the Plaintiff, having failed to establish that it was paid either to the Plaintiff personally or to any other persons on the Plaintiff’s mandate. The Plaintiff’s relief (b), (c), (d) and (e) accordingly must fail. Relief (f) succeeds in part because the Plaintiff is entitled to interest on the various sums amounting to GHC 75,000.00. Relief (g) for the recovery of the Plaintiff’s lease covering the property on house number Plot 17, 4th Street, Asokore-Mampong will be dependent on the outcome of the Defendant’s counterclaim for payment of the outstanding balance of the overdraft facility extended to the Plaintiff.
For now, the Plaintiff is entitled to judgment in the sum of GHC 75,000.00 and interest thereon at the prevailing bank rate from the date of each withdrawal to the date of judgment, and post judgment interest up to the date of final payment. From exhibit ‘1’, the Plaintiff’s overdrawn balance as at 23/12/2011 stood at GHC 53,344.88. The Plaintiff has not demonstrated to this court that she has paid any portion of this amount. In exhibit ‘3’, the Plaintiff agreed to pay off the overdraft facility together with interest of 5% per annum above the bank’s base rate which was then 27.75%. Therefore, the Defendant’s claim of interest at 32.5% per annum is within the agreed limit. Accordingly, the Defendant is entitled to judgment on the sum of GHC 53,344.88 and interest thereon at the rate of 32.5% per annum from 23/12/2011 till date of delivery of judgment and post judgment interest till date of final payment on its counterclaim.
Finally, the Defendant’s total indebtedness together with the accrued interest is to be set off against the Plaintiff’s total indebtedness to the Defendant plus the accrued interest. And, if there is a credit balance in favour of the Plaintiff, the Defendant shall release the lease covering the mortgaged property, Plot 17, 4th Street, Asokore-Mampong to the Plaintiff forthwith and pay the difference as well. On the other hand, if there is a debit balance against the Plaintiff, the Defendant is to recover the amount outstanding from the Plaintiff, or alternatively, take steps to realise the security.
Considering the circumstances of this case, the parties are to bear their own legal expenses.