IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
RIGWORL INTERNATIONAL SERVICES - (Plaintiff)
SOCIETE GENERALE GHANA LIMITED - (Defendant)
DATE: 12 TH JULY, 2018
SUIT NO: CM/BDC/0654/16
JUDGES: AKUA SARPOMAA AMOAH (MRS.) JUSTICE OF THE HIGH COURT
ALFRED BUATSI FOR PLAINTIFF
COUNSEL FOR DEFENDANT
The Plaintiff, in the present suit, seeks the following reliefs against the Defendant;
a) A declaration that the Defendant was not entitled to debit the account with the amount on the email instruction from koabban.rigworld firstname.lastname@example.org.
b) The repayment of the sum of Fifteen Thousand United States Dollars (US$15,000.00) being the amount purportedly transferred by the email instruction.
c) Interest on the said sum at the contractual rate from April 28, 2016 up to date of actual and final payment.
d) Damages for breach of contract.
e) Costs including Legal Fees being 10% of the sum claimed in relief (b) above.
The Plaintiff’s case is that it is a Ghanaian registered company having its registered office at Number 11, Patrice Lumumba Street, Capital Place, Airport Residential Area, Accra. The Defendant, also registered and operating under the laws of Ghana, is a bank and engaged in the business of Universal Banking. The Plaintiff says that as an account holder of Defendant bank, it is mandated to instruct the Defendant to honour payment instructions via email. The email address as officially agreed between the Parties for such transactions is email@example.com (Indemnified Email Address)
On or about the 28th day of April, 2016, the Defendant honoured a transfer instruction purportedly issued by Plaintiff for the transfer of Fifteen Thousand United States Dollars (US$15,000.00) in favour of one Y.O. Salawu. As it turned out, the said transfer instruction, to the said Y.O. Salawu emanated from an unauthorized email address being firstname.lastname@example.org (Forged Email Address). Plaintiff avers that the said transfer was neither drawn nor authorized by it. Plaintiff contends further, that the Defendant has been negligent in effecting a transfer of Plaintiff’s funds from the forged email address. It particularized Defendant’s negligence as the Defendant’s failure to observe its duty of care to the Plaintiff which led to the Defendant honouring payment instructions from an email address other than that agreed upon by the Parties. Plaintiff says that it has suffered losses as a result of the unwarranted debit of its account by Defendant, following the unauthorized transfer.
The Defendant however, despite persistent calls on it to refund the said Fifteen Thousand United States Dollars (US$15,000.00) has failed or refused to do so hence the present suit. The Defendant denies Plaintiff’s claims. It maintains that the email address from which it received instructions to transfer the said Fifteen Thousand United States Dollars (US$15,000.00) to Y.O. Salawu was the indemnified email address being email@example.com and not firstname.lastname@example.org as asserted by Plaintiff. According to the Defendant, it had, prior to the said instruction, received a request from the Plaintiff for the transfer of Five Thousand United States Dollars (US$5,000.00) from the indemnified address, which had been provided by the Plaintiff on an Email Indemnity Form dated and executed on the 28th day of October, 2015. That particular payment was effected after several attempts to reach the Managing Director of Plaintiff on phone had proved futile. Defendant therefore requested the Managing Director to send signed funds transfer instructions, which was received by the Defendant on the 27th day of April, 2016.
That very day the Plaintiff’s Managing Director via the indemnified email address requested the SWIFT transfer advice for the said amount of Five Thousand United States Dollars (US$5,000.00) which advice was duly provided by the Defendant and receipt of which the Plaintiff duly acknowledged through the indemnified email address. Subsequently, the Defendant, on the 28th day of April, 2016, received another transfer request from the indemnified email address for the transfer of an amount of Fifteen Thousand United States Dollars (US$15,000.00) to Y.O. Salawu with Account Number 42174826 with Satander Bank, Bradford, West Yorkshire in the United Kingdom which it honoured. The Defendant denies Plaintiff’s assertion that the instruction for the transfer of the said Fifteen Thousand United States Dollars (US$15,000.00) emanated from the forged email address and not the indemnified address provided on the Email Indemnity Form. Defendant further denies Plaintiff’s charges of negligence and says that upon receiving Plaintiff’s complaints about the alleged unauthorized transfers, it had, without necessarily admitting liability, made several efforts at helping Plaintiff retrieve the said funds but was only successful with the retrieval of the amount of Five Thousand United States Dollars (US$5,000.00) which had been transferred to an account with the GT Bank. The Fifteen Thousand United States Dollars (US$15,000.00) transferred to Satander Bank was however not retrieved as the same had been withdrawn from the beneficiary account. It says that it duly discharged its duty of care to the Plaintiff as customer with diligence and without negligence.
Four (4) issues were set down for trial namely:
1. Whether or not the instructions to pay Fifteen Thousand United States Dollars (US$15,000.00) to Y.O. Salawu emanated from Plaintiff.
2. Whether or not Plaintiff suffered some loss as a result of the act or omission of the Defendant in honouring instructions to pay Y.O. Salawu.
4. Whether or not Plaintiff is entitled to the reliefs claimed.
Stephen Adarkwa, the Director of Finance of the Plaintiff Company represented the Plaintiff at the trial. He testified, that the Plaintiff is the holder of Account No. 6000072015 with the Defendant bank. As evidence of the official mandate for payment instructions via email, he tendered as EXHIBIT A, the indemnity form filled at the time of opening the account with the Defendant. The indemnified email address as stated on EXHIBIT A was email@example.com. He tendered EXHIBIT B and B1 in support of his contention that this was the email address that had been used by the Plaintiff in all its dealings with the Defendant in issuing payment instructions. He explained that, before any payment instructions received by the Defendant via the indemnified address would be honoured, the said instructions had to be confirmed in writing on the letterhead of the Plaintiff as evidenced by EXHIBITS B and B1. He told the Court, that the Defendant on the 28th day of April, 2016 honoured instructions from the forged email address. He maintains that instructions for the said transfer, which emanated from the forged address did not emanate from Plaintiff.
The Defendant had however, in breach of the express terms of EXHIBIT A transferred the said funds to one Y.O. Salawu and wrongfully debited the Plaintiff’s account with the amount transferred. EXHIBIT C series were tendered as evidence of communication between the Parties on the issue. Upon discovery of the wrong debit as evidenced by EXHIBIT D, the Plaintiff duly brought this fact to the attention of the Defendant but the Defendant has failed or refused to reverse the said transaction. Like the Plaintiff, Defendant’s testimony was in line with its pleadings. Antoinette Kalognia, an Assistant Relationship Manager of the Defendant bank testified on its behalf. Defendant does not deny that it transferred an amount of Fifteen Thousand United States Dollars (US$15,000.00) from the Plaintiff’s account to one Y.O. Salawu but insists that it did so on the instructions originating from the address provided on the Email Indemnity Form which Defendant tendered as EXHIBIT 1. I find the Defendant’s EXHIBIT 1 and Plaintiff’s EXHIBIT A to be one and the same document. In order to avoid any confusion, I will, in this judgment, refer solely to EXHIBIT A when making any references to the said document. EXHIBITS 2 and 3 were tendered by the witness in proof of email instructions and a transfer request purportedly received from Plaintiff for the transfer of Five Thousand United States Dollars (US$5,000.00) to Precision Point Ltd., which according to her was processed by Defendant, after going through the necessary pre-payment formalities. Also tendered in evidence were EXHIBITS 4 and 5 said to be email instructions and a signed transfer request emanating from Plaintiff for the transfer of funds to Y.O. Salawu on the 28th day of April, 2016.
The witness testified that she verified the signature on the said instructions contained in EXHIBIT 5 and that it was the same as that in EXHIBIT A. She stated further that the Managing Director of Plaintiff, on the 9th day of May, 2016, again sent instructions, this time, from the forged email address for the transfer of Five Thousand United States Dollars (US$5,000.00) to another company, Arti & Realty Ltd. The said instructions were tendered as EXHIBIT 6. These instructions, according to the witness, were not acted upon by the Defendant. She added, that upon being informed that the previous transfers of Five Thousand United States Dollars (US$5,000.00) and of Fifteen Thousand United States Dollars (US$15,000.00) had not been authorized by Plaintiff’s Managing Director, the Defendant had made frantic efforts at reversing the said transactions. This included the provision of an indemnity guarantee tendered as EXHIBIT 7 to GT Bank at the request of the said bank, to secure the return of the funds to Defendant. According to Defendant’s witness, certain persons had been arrested and were being investigated as a result of the said incident.
Now, the law burdens a banker or a banking institution with a duty to comply with the terms of its customer’s mandate and to exercise reasonable care, diligence and skill in dealing with the customer’s affairs so as to prevent any losses to the customer. Any breach of this obligation will result in the bank incurring liability for such loss. Thus in the case of STANDARD CHARTERED BANK v VICTORIA ISLAND PROPERTIES [2003-2005] 1 GLR 550 at PAGE 560, Tsumasi JA said;
“The short comment which I consider necessary to make to all banks in this country is that as far back as the year 1961, 43 odd years ago, when our legislature enacted the Bills of Exchange Act (Act 55) section 81 thereof, all banks must be deemed to know that they owe a duty of care to true owners of any money that is put into a bank and this imposes a strict adherence to rules and regulations or measures that should operate to assist the banks in detecting obvious frauds. If a particular bank has no such rules of practice, that alone constitutes grievous breach of negligence in the same way as the rules exist but have not been scrupulously followed or applied by the employees of the bank concerned...”
The starting point is to state that this being a civil claim, it is the Plaintiff who shoulders the burden to prove its claim on a balance of probabilities. To succeed, the Plaintiff must prove on a balance of probabilities that the Defendant breached its duty of care by honouring payment instructions from the forged email address. In proof of its claim, the Plaintiff relies mainly on EXHIBIT C series. It should be necessary to set out the relevant portions of the said email correspondence for the sake of clarity. On the 4th day of May, 2016, Kwame Bannor who, as disclosed by the evidence on record, is a Relationship Manager of Defendant bank, at 9:52 am received email correspondence from the forged email address which read;
“Kwame- I sent an instruction last week. Please may I have the swift copy?”
The said email was purportedly signed by the Managing Director of Plaintiff, Dr. Kofi Abban.
In response, the said Kwame Bannor on the same day at 11:57stated:
‘Kindly assist me with details of transfer to enable me generate swift copy. ”
Pursuant to Defendant’s request, it received a response from the forged email address as follows;
Kwame-Please find attached.
Quite clearly, the Defendant, after receiving the details requested, sent the SWIFT copy to the forged address per the following email:
“Please find swift copy attached” to which a response was received from the forged email as follows;
Again, on the same day, the Defendant received from the forged email address, another email purportedly from Plaintiff’s Managing Director, Dr. Kofi Abban. This time, the correspondence read;
“Kwame –Please check why the beneficiary has not received payment yet.”
In response, Kwame Bannor duly acknowledged receipt of the above email at 15:22 pm the same day and promised to “investigate and revert.”
Another email was sent the same day from the forged address at 2:48 pm asking;
“Kwame-What is the status of your investigation, please confirm.”
To which Kwame Bannor replied;
“Upon our investigation, everything is ok from our side. A tracer has been sent to the corresponding bank to advise on whereabouts of funds.”
The next day ie on the 5th day of May, 2016 at 7:23 am, another email was received by Defendant from the forged address as follows;
“Any update? Please advise.”
The email trail shows a break in communication between the Parties to the said exchange until the 9th day of May, 2016 when the said Kwame Bannor sent an email to Plaintiff. This time to the indemnified email address provided on EXHIBIT A, apparently in respect of the transfer to Y.O. Salawu. It is significant to note that the Defendant does not challenge the authenticity of EXHIBIT C series. It also does not deny that it did receive instructions from the forged email address. Indeed under cross-examination the Defendant’s representative stated as follows;
Q: Look at Exhibit C series up to Exhibit C (iii) where did they emanate from?
A: From the un-indemnified e-mail.
Q: All the responses in those exhibits where did they emanate from?
A: My colleague Kwame Bannor.
Q: So by Kwame Bannor, you mean the Defendant?
A: Yes my Lord.
Notwithstanding ample evidence that the Defendant had responded to enquires emanating from the forged email address, Defendant has maintained that it never effected any payments on instructions from that address. In Paragraph 13 of her witness Statement, Defendant’s representative confirms that the Defendant received an email from the forged address requesting a SWIFT copy of the Fifteen Thousand United States Dollars (US$15,000.00) transferred to Y.O. Salawu, which her colleague readily made available to Plaintiff. The question of whether or not there is evidence to support the Defendant’s assertion that it was indeed the Plaintiff’s Managing Director who requested the said SWIFT copy per the forged email address and whether or not it was he who went further to acknowledge receipt of same will be addressed later on in this judgment. But what is clear from the Defendant’s own showing is the fact that, the Defendant’s official acted on instructions from the forged address. To me, the thorny issue that remains to be determined is whether or not the Fifteen Thousand United States Dollars (US$15,000.00) transferred to the said Y.O. Salawu was on instructions received from the forged email address or from the indemnified email address.
Plaintiff having adduced prima facie evidence of communication between the Defendant and the forged email address on the transfer in issue, the onus shifted onto the Defendant to prove its assertion that it did not effect the payment or transfer on instructions emanating from that address, despite this communication. This accords with the long standing legal principle that it is he who asserts that must prove. Thus in the case of FOSUA & ADU v DUFIE &ADU POKU-MENSAH  SCGLR, 310 @ 327 The Supreme Court held: “The Evidence Decree makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation … the duty or obligation could shift from the plaintiff to defendant. If and when it is shifted, the defendant would be required to lead evidence to establish the sale once he claimed to have had possession by reason of the sale of the house to him. When the duty or obligation to adduce evidence shifts, and the defendant fails to adduce evidence….the ruling of the court will go against the defendant. This is the reason for the provision in section 14….”
So, what was the evidence proffered by the Defendant in support of its assertions?
Under cross–examination, the Defendant’s witness explained the pre-payment procedures normally followed by Defendant before honouring any payment instructions issued by a customer as follows;
“When we receive an instruction from a customer, we first of all cross check the email to make sure it is coming from the right email address that had been indemnified. We received [sic] the transfer instruction by stamping, verify the signature in our system, call the customer to get confirmation through the indemnified mail and we go ahead to process it.”
EXHIBIT 2 was therefore tendered by the Defendant to bolster its position that it had at all times material to this suit, acted on instructions emanating from the indemnified email address stated in EXHIBIT A. A cursory look at the top part of EXHIBIT 2 reveals that the date and the address from which the Plaintiff’s Managing Director purportedly sent the said email are conspicuously absent. The same applies to the response purportedly sent by the Defendant’s witness to Plaintiff. Also, EXHIBIT 2 which is supposed to be proof of instructions emanating from the Plaintiff for the payment of Five Thousand United States Dollars (US$5,000.00) to Precision Point Ltd. is not only silent on who the beneficiary of the said transfer is supposed to be but appears to have an incomplete signature. Matching the said exhibit against EXHIBIT C series, (the authenticity of which Defendant does not deny) it becomes clear that EXHIBIT 2 contains several discrepancies. Apart from her unconvincing claim that the signature of Plaintiff’s Managing Director had obliterated parts of the exhibit, Defendant’s witness was quite candid that she had no explanation for these inconsistencies. This causes me to question the genuineness of the said exhibit. EXHIBIT 4 is also supposed to be evidence of email instructions for the transfer that has sparked the present litigation. These are instructions purportedly issued for the transfer of Fifteen Thousand United States Dollars (US $15,000.00) to Y.O. Salawu. I fail to appreciate how the said exhibit proves that the Plaintiff issued any such instructions. This is because there is nothing on the face of EXHIBIT 4 to substantiate the Defendant’s allegation that the Plaintiff on the 28th day of April, 2016 sent email instructions for the transfer of Fifteen Thousand United States Dollars (US$15,000.00) to the said Y.O. Salawu. No explanation was offered for Defendant’s failure to produce the contents of the email instructions purportedly sent by Plaintiff to Antoinette Kalognia (the witness) on the 28th of April, 2016. I find preposterous the stance of Defendant’s witness under cross-examination that, “I acknowledge the fact that there is no continued mail following the evidence but I still stand on my grounds that it came from the said mail firstname.lastname@example.org.”
The obvious question any reasonable observer will pose is, if the transfer to Y.O. Salawu was effected on the instructions of Plaintiff from the indemnified email address, why could the Defendant not produce such vital evidence in proof of its case? Again, turning to EXHIBITS 3 and 5, why did the Defendant not proffer any reasonable explanation for the absence of the “received stamp” in line with the witness’s own testimony about its pre- payment procedures? The failure of Defendant to offer any reasonable explanation for the clear discrepancies between its testimony and its documentary evidence casts suspicion on its assertions. It should be borne in mind that, to the extent that the Plaintiff had led ample evidence to prove dealings between the Defendant and the forged email address, in relation to the transaction in dispute, the onus shifted onto the Defendant. The Defendant was required to convince this Court, that it did not effect payment on instructions from the forged email address but on the Plaintiff’s instructions and in line with the mandate provided in EXHIBIT A.
I have carefully evaluated the exhibits tendered by both sides and find that even though the Defendant has sought to provide its own set of records to substantiate its allegations, it does not in any way challenge the authenticity of the Plaintiff’s exhibits, particularly EXHIBITS B and C series. I find the unchallenged exhibits of Plaintiff to be authentic and corroborative of its testimony. The Defendant’s exhibits on the other hand appear inconsistent with its testimony and smacks of an attempt to conceal vital evidence from this Court either because the same is unfavourable to its case or because it is nonexistent. This is because it is to me, inconceivable that the Defendant will omit to produce the very evidence on which this case turned, if the same was indeed available. This failure compels me to view the Defendant’s exhibits particularly, EXHIBITS 2, 3, 4 and 5 as self–serving and conveniently procured to mislead this Court. I am therefore not disposed to attach any value to same.
That said, can it be said that there is sufficient proof on record that the amount of Fifteen Thousand United States Dollars (US$15,000.00) transferred to Y.O. Salawu was effected on instructions from the forged email address? It should be remembered that in any civil suit, the Court in determining whether or not a party’s allegations are true, will weigh up the said allegations and test the same against the general probabilities. If the balance of probabilities favours the party making that allegation, the Court will accept his version as true and that of his opponent false. The Defendant appears to have pegged the success of its case on the absence of any direct evidence that the transfer to Y.O. Salawu was effected on instructions from the forged email address. However, in the case of GLIGAH & ATISO v THE REPUBLIC, the Supreme Court had this to say;
“The same with circumstantial evidence. It is generally accepted that when direct evidence is unavailable, but there are bits and pieces of circumstantial evidence available and when these are put together they make stronger, corroborative evidence than direct evidence.”
Although this principle was espoused in a criminal case, it applies to civil cases as well. The question therefore is whether or not the evidence on record taken together points inexorably to the fact that the transfer to Y.O. Salawu was effected on instructions from an email address other than that authorized by the Plaintiff. Now, I do not think that it is in dispute that it came to light that the said transfers to Precision Point Ltd. and to the said Y.O. Salawu had been procured by fraud. Indeed the frantic efforts on Defendant’s part to secure a return of the transferred funds which included the provision of an indemnity guarantee (EXHIBIT 7) to GT bank removes any doubts that the Defendant indeed believed that the Plaintiff did not authorize the said transfer even if that did not amount to an acceptance of liability. After all by virtue of Paragraph 4 of EXHIBIT A, the Defendant was under no obligation to go to such lengths if satisfied that it had complied with the terms of the customer’s mandate. I also find that the eventual recovery of the amount of Five Thousand United States Dollars (US$5,000.00) from Precision Point Ltd. and the subsequent arrest and investigation of the persons involved further lends credence to the Plaintiff’s story. The police surely must have found the complaint worth investigating. The question therefore is, who authorized or facilitated the fraudulent transfer to Y.O. Salawu, if it was not the Plaintiff?
It is not in controversy that the Defendant per its official, Kwame Bannor responded to certain queries emanating from the forged email address. I am unable to agree with the testimony of Defendant’s representative in Paragraph 15 of her witness statement that the Defendant did not act on instructions from the said address. On the Defendant’s own showing, Kwame Bannor in compliance with instructions from the forged email address, sent a SWIFT copy evidencing the transfer of the said Fifteen Thousand United States Dollars (US$15,000.00) to that address. I think it is quite obvious that this instruction would not have been issued “out of the blue”. There must have been some antecedents which would have included a request for the transfer of the funds in question to the said beneficiary. In the absence of any cogent and credible evidence that it was the Plaintiff who authorized the said transfer, this Court is entitled to infer that the instructions for the said transfer came from none other than the forged email address being email@example.com.
By Section 18(2) of the Evidence Act (NRCD 323).
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or established in the action.
Thus in the absence of direct evidence, an inference can be drawn from established facts. I find it established that;
1) The transfer of the said Fifteen Thousand United States Dollars (US$15,000.00) to Y.O. Salawu had not been authorized by the Plaintiff.
2) That the Plaintiff’s account had however been debited with the said amount.
3) That the Defendant had communicated with and acted on instructions emanating from the forged email address which included forwarding a SWIFT copy of the said transfer to that address.
The inference I draw from the evidence on record is that, having effected the said transfer to Y.O. Salawu on instructions from the forged address, the Defendant readily acted upon instructions to forward a SWIFT copy of the transaction to the same address. I note a lame attempt by the Defendant in Paragraphs 13 and 14 of its witness statement to contend that it was the Plaintiff’s Managing Director who issued instructions from the forged email address. Frankly, I do not see how this contention helps the case of Defendant as it does not in anyway answer the question of liability on the Plaintiff’s claim. This is because even if the Defendant is given the benefit of the doubt and we proceed on the assumption that it was indeed the Managing Director of Plaintiff who issued instructions from the said unauthorized source, it still falls on the Defendant to explain why it would even honour a request for a SWIFT copy from that address in total breach of the terms contained in EXHIBIT A. A careful reading of the said terms will reveal an obligation imposed on the Defendant. This was to only accept instructions from the indemnified email address. And this indeed applied to all instructions and not just instructions for the payment of money. In the book Goode on Commercial Law, Revised and Edited by Ewan Mckendrick (4th Edition), the Learned Author and Editor speaking on the duties of a banker at page 595 states that;
“In principle, the paying banker’s duty to honour his mandate is, like any other contractual duty a strict one and where the terms of the mandate are broken, the exercise of reasonable care is no defence.”
The Plaintiff’s complaint clearly remains unanswerable whichever way one looks at it and I am convinced on the evidence as a whole that the Defendant did transfer the said Fifteen Thousand United States Dollars (US$15,000.00) to Y.O. Salawu, on instructions emanating from the forged email address and not on instructions from the indemnified one. Now, the Plaintiff charges the Defendant with negligence. This the Defendant vehemently denies. It is trite learning that to succeed on a claim in negligence, the Plaintiff must establish that the Defendant owed it a duty of care which was breached by the Defendant and that Plaintiff suffered damages as a direct result of the breach. Having already found that the Defendant owed the Plaintiff as customer a duty of care, I find no need to rehash same. It should also be quite obvious from my analysis of the evidence so far, that I do not think the Defendant dealt with the Plaintiff’s affairs with reasonable care. A legal obligation is imposed on professionals such as the Defendant in this suit to display appropriate levels of skill. This position was emphasized in the case of BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE  2 All ER 118 where MCNAIR J stated that;
“Where you get a situation that involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Therefore, even though Courts in recent times are cautious not to impose on a bank the role of an amateur detective, the law still demands that a bank not only exercises reasonable care in handling the affairs of its customer but that the care exercised measures up to the standard of competence of a reasonable person professing knowledge and skill in the business of banking.
Unfortunately, Kwame Barnor, the Defendant’s main official who worked on the transaction in dispute was not called to testify on the care he took to prevent the loss complained of. There was no suggestion by the Defendant that he was unavailable as a witness within the meaning of Section 116 of the Evidence Act (NRCD 323). It is my view therefore, that the Defendant’s witness’ testimony on matters that could only have been within the peculiar knowledge of Kwame Bannor is clearly hearsay and will be disregarded by this Court. This includes the Defendant’s testimony that Kwame Bannor did not act on EXHIBIT 6 but rather called Plaintiff’s Managing Director on phone to confirm the authenticity of the email instruction. I am in no doubt at all that the fraud perpetrated on the Plaintiff in this suit would have been prevented if the Defendant had exercised the skill and diligence expected of a prudent banker. The Defendant did not need to subject the email received from the forged address to microscopic examination to realize that it did not emanate from the indemnified email address. Additionally, a careful comparison of the signatures on Defendant’s EXHIBITS 3 and 5 with Plaintiff’s EXHIBITS A, B (i) and B (ii) would reveal some differences that ought to have put the Defendant on the enquiry.
The signatures on EXHIBITS 3 and 5 appear to include a straight bar that I find, is nonexistent in EXHIBITS A, B (i) and B (ii). It appeared to be the contention of Counsel for Defendant during cross-examination of Plaintiff’s representative that Plaintiff facilitated the said fraud by allowing officials other than its Managing Director to send payment instructions to the Defendant bank. It is not clear to me whether this was an attempt by Defendant to raise the defence of estoppel or contributory negligence. In any event, Plaintiff’s representative in response, explained that by their internal procedures, other officials were permitted to issue instructions for payments but all payments were subject to the sole approval of its Managing Director. This fact is amply supported by EXHIBITS B and B (ii). It is also significant to point out that there is nothing in EXHIBIT A that prohibits officials other than the Managing Director of Plaintiff from sending payment instructions to the Defendant. What is clear though is that, he was the only authorized signatory to the account. The Plaintiff cannot therefore be said to have breached the terms of EXHIBIT A. It is clear that the Defendant has failed to dislodge the Plaintiff’s claim that it failed to perform its duties with the requisite care and skill. I accordingly find and hold that the Defendant is in breach of its duty of care to Plaintiff as its customer.
The next important question is whether the Plaintiff suffered any loss or damage as a result of the Defendant’s breach. On the evidence, I think it goes without saying that the Defendant was not entitled to debit the Plaintiff’s account with the unauthorized payment. The Plaintiff has certainly suffered considerable loss as a result of having been deprived of the use of its money since April 2016 for which reason, it should be entitled to repayment of the said Fifteen Thousand United States Dollars (US$15,000.00) together with interest. It is well-established that the test for negligence is an objective one in the sense that it is for the Court to ascertain whether a reasonable man, in the position of the Defendant, would have foreseen the reasonable possibility of his conduct injuring the Plaintiff and would have taken reasonable precautions to prevent such an occurrence. I believe both questions can be answered in the affirmative in this case and accordingly find that Plaintiff has succeeded in proving negligence on the part of Defendant. Though this appears to be an action founded in tort, the Plaintiff prays for damages for breach of contract.
The case of HENDERSON v MERRET SYNDICATES LTD  2 AC 145, is authority for the legal position that a Defendant’s act could give rise to concurrent liability in contract and in tort provided the duty imposed in tort does not conflict with the terms of the contract entered into by the parties. The evidence on record does not only establish negligence but also a breach of the contractual terms contained in EXHIBIT A. It is this breach by the Defendant that has compelled the Plaintiff to, among other expenses obviously incurred, engage lawyers to institute the instant suit. The Defendant ought to have reasonably anticipated that its breach would result in such losses to Plaintiff. Reverting now to the issue of interest payable, I find that the Plaintiff led no evidence in support of its claim for the payment of interest at the alleged contractual rate. Any interest payable shall therefore be at the prevailing bank rate.
In the premises, I enter judgement for Plaintiff as follows;
I declare that the Defendant was not entitled to debit the account of the Plaintiff with the amount of Fifteen Thousand United States Dollars (US $15,000.00) on the email instructions from firstname.lastname@example.org and hereby enter judgement for Plaintiff to recover from the Defendant as follows;
1. The sum of Fifteen Thousand United States Dollars (US$15,000.00) being the amount wrongly transferred from Plaintiff’s Account No. 600007201705 on instructions from koabban.rigworld email@example.com.
2. Interest on the said Fifteen Thousand United States Dollars (US$15,000.00) at the prevailing bank rate calculated from 28th April, 2016 up to and inclusive of date of final payment.
3. Twenty Thousand Ghana Cedis (GHȼ20,000.00) as damages for breach ofcontract.
I award costs of Ten Thousand Ghana Cedis (GHȼ10,000.00) in favour of Plaintiff against Defendant.