IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
SAMPSON XEPONU TOMMEY - (Plaintiff)
STANDARD CHARTERED BANK GHANA LTD - (Defendants)
DATE: 31 ST JULY, 2018
CIVIL APPEAL NO: CM/0227/2016
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
EMMANUEL DARKWA ESQ., FOR DEFENDANT
NII OMAN BADOO ESQ., FOR PLAINTIFF
In March 2013 judgment was entered for the plaintiff against the defendant herein for reliefs in Suit No. BFS/451/2010 which the plaintiff had taken out against the defendant. The plaintiff alleges that in the judgment given in Suit No. BFS/451/2010 no order was made about a $10,000.00 Treasury Bill investment he had with the defendant because the defendant had admitted, in its pleading before the court, that the said $10,000.00 Treasury Bill investment was still rolling over on a 91 day basis. The plaintiff says that after the delivery of the judgment, he has made several but fruitless efforts to be given not only a statement on the investment but also to enable him access the said investment together with interest accrued thereon. The plaintiff therefore issued the instant writ against the defendant for:
a. An order directed at the Defendant to furnish the Plaintiff with a full statement of account on his USD10, 000.00 or its equivalent invested in 91 day Treasury Bill from the 2nd day of February 2009 till the final date of payment.
b. An order appointing an independent Auditor/Accountant to reconcile Plaintiff’s accounts with the Defendant on his USD10, 000.00 or its equivalent invested in 91 day Treasury Bill (including application of agreed interest rates on the said investment and reversal of incorrect charges.
c. An order directed at the Defendant to pay all sums ascertained by the independent Auditor/Accountant to be due the Plaintiff together with any interest on same until the final date of payment.
d. General Damages for the inconvenience caused Plaintiff
e. A further order against the Defendant to pay costs and the legal expenses of the Plaintiff in this suit.
The defendant has denied holding the said $10,000.00 Treasury Bill investment presently because, according to the defendant, the plaintiff requested the defendant to stop the roll-over of the investment which the defendant, accordingly, obliged after which the said amount was credited to the plaintiff’s account and a statement made available to the plaintiff upon demand. From the pleadings therefore, the following issues stand out for determination by the court. First, whether or not subsequent to the judgment in Suit No. BFS/451/2010 the plaintiff requested the defendant to stop the roll-over of the $10,000.00 Treasury Bill investment. Second, whether or not the defendant carried out the plaintiff’s instructions with respect to the stoppage of the investment and credited the plaintiff’s account with the sum of the investment. Third, whether or not the defendant furnished the plaintiff with a bank statement on his account upon demand by the plaintiff. Finally, the court ought to decide whether or not the plaintiff is entitled to his claims against the defendant herein. From the pleadings, the court finds that the fact that the plaintiff is a customer of the defendant bank and that the plaintiff sometime in October 2008 instructed the defendant to purchase a $10,000.00 or its cedi equivalent Treasury Bill on behalf of the plaintiff is not denied. Indeed, the plaintiff pleaded this fact in paragraph 4 of his statement of claim and the same was admitted by the defendant in paragraph 3 of its statement of defence.
Further, the fact that the defendant purchased a $10,000.00 or its cedi equivalent Treasury Bill on behalf of the plaintiff is clearly stated by the defendant in paragraph 5 of the defendant’s statement of defence.
In paragraph 7 of its witness statement, the defendant testified that after the plaintiff had instructed it to purchase Treasury Bill in the sum of $10,000.00 or its cedi equivalent, the Bank of Ghana did not accept the offer to sell/buy the $10,000.00 or its cedi equivalent in Treasury Bill in the week in which the defendant bank made the offer on behalf of the plaintiff. Hence, the offer was split into two: an amount of GH₵4,735.00 was initially purchased in Treasury Bill and later an amount of GH₵6,265.00 was purchased making a total of GH₵11,000.00 which was then the cedi equivalent of $10,000.00 At the trial the plaintiff took issue with the defendant that notwithstanding his instructions to the defendant to purchase Treasury Bill from the Government of Ghana, the defendant purchased its own fixed deposit which had a lower return in terms of interest. This is clearly captured in paragraph 7 of the statement of claim. Although the defendant admitted this averment by the plaintiff, the court finds that the issue concerning the breach of the defendant’s duty to carry out legitimate instructions from the plaintiff, as far as the investment of the $10,000.00 or its cedi equivalent in Treasury Bill was concerned, was, among others, a subject of adjudication and positive finding and pronouncement by the court which heard Suit No. BFS/451/2010. The plaintiff, in paragraph 20 of his statement of claim, has stated the reliefs which he indorsed on his writ of summons in Suit No. BFS/451/2010 as follows:
The Plaintiff says that he instructed his lawyers to issue a Writ of Summons and Statement of Claim against the Defendant on the 24th day of November 2010 in Suit No. BFS 451/10 for the following reliefs:
a. An order directed at the Defendant to furnish the Plaintiff with a full statement of account (savings and investment) from the date on which the Plaintiff opened with the Defendant Bank in October 2008 till November 2010.
b. An order appointing an independent Auditor/Accountant to reconcile Plaintiff’s accounts with the Defendant (including application of agreed interest rates on investments and reversal of incorrect charges).
c. An order directed at the Defendant to pay all sums ascertained by the independent Auditor/Accountant to be due the Plaintiff.
d. Interest on any sum established by the Auditor/Accountant to be due the Plaintiff from the date on which same was due till the date of final payment at the prevailing commercial bank rate.
From the endorsement on the instant writ, it is clear to the court that reliefs a, b and c endorsed on the writ of summons in the instant case is not different from the reliefs endorsed by the plaintiff on his writ of summons in Suit No. BFS/451/2010. The only additions in the endorsement on the instant writ of summons is the claim for damages and for further order against the defendant to pay costs and legal expenses of the plaintiff which, in the opinion of this court, are dependent upon the successful prosecution of reliefs a, b and c endorsed on the writ of summons.
The plaintiff tendered in evidence exhibit A which is the judgment of the court in Suit No. BFS/451/2010. At page 19 to 20 of exhibit A, the learned judge stated in respect of the instructions regarding the $10,000 that:
Using the information on the figures and dates gleaned by the Court Expert which dates and figures are supported by the exhibits and testimonies of the parties, I order the following damages to be paid by the defendant to plaintiff regarding the first instruction to purchase treasury bills in October 2008. The defendant is ordered to calculate interest at the rate of 24.8% on the sum of 11,282 GH¢ from 7th October 2008 to 2nd February 2009. Interest is to apply on this sum at the prevailing bank interest rate from 2nd February 2009 to date of final payment. This payment represents damages for the failure to purchase the 11,282 GH¢ treasury bills in favour of defendant.
This represents the closest this court can come to in ensuring that defendant retains no benefit from failing to abide by plaintiff’s investment instructions in October 2008, and plaintiff is totally compensated for any losses he may have incurred as a result of defendant’s breach of his mandate to invest the cedi equivalent of $10,000 from 6th October 2008 to 2nd February 2009 when it eventually complied with plaintiff’s mandate.
From the above findings and orders of the court in Suit No. BFS/451/2010, this court finds that notwithstanding the fact that the defendant in this suit did not specifically plead the defence of estoppel per rem judicatam; the cause of action and the issues concerning the failure of the defendant to carry out plaintiff’s instructions to buy treasury bills was raised in Suit No. BFS/451/2010 and thoroughly discussed by the learned judge in that case. The plaintiff is therefore, in the opinion of this court, estopped from raising the defendant’s failure to buy the treasury bills initially as an issue in the present action. In re Asere Stool; Nikoi Olai Amontia IV vs. Akotia Oworsika III [2005-2006] SCGLR 637 at pages 651 to 652, the Supreme Court explained the law on estoppel per rem judicatam when it stated that:
What is estoppel per rem judicatam? In Thoday v Thoday  1 All ER 341 at 352, Diplock LJ said estoppel per rem judicatam is a generic term which in modern law includes two species. The first species, which he called “cause of action estoppel” is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non – existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie judgment was given on it, it is said to be merged in the judgment, the Latin phrase being transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim, Nemo debet bis vexari pro una et eadem causa, meaning literally, that no man ought to be twice put to trouble, if it appears to the court that it is for one and the same cause. His Lordship, Diplock LJ, identified the second species as “issue estopel,” which he said was an extension of the same rule of public policy. This will arise where apart from cases in which the same cause of action or the same plea in defence is raised, there may be cases in which a party may be held to be estopped from raising particular issues, if those issues are precisely the same as the issues which have been previously raised and have been the subject of adjudication.
Again in In re Kwabeng Stool; Karikari vs. Ababio II [2001-2002] SCGLR 515, the Supreme Court re-iterated the same principle when it held at page 530 that
The doctrine or principle of estoppel is founded on the maxim interest reipublicae ut sit finis litium meaning, “it concerns the State that lawsuits be not protracted.” Also, “no man ought to be twice vexed, if it be found to the court that it be for one and the same cause” (nemo debet bis vexari, si constat veriare quod sit pro una et eadem causa ). If an action is brought, and the merits of the question are determined between the parties, and a final judgment is obtained by either, the parties are precluded, and cannot canvas the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment.
Indeed, it was during the pendency of Suit No. BFS/451/2010, that the defendant realizing its mistake in not specifically carrying out the plaintiff’s instructions regarding the $10,000.00 investment, that the defendant, in August 2011 purchased the treasury bills, albeit, in two separate bids due to the Bank of Ghana’s inability to accept the total offer available for purchase at a go. This fact is clearly supported by evidence given by the defendant in paragraph 6 of its witness statement. The question for determination is whether or not subsequent to the judgment in Suit No. BFS/451/2010 the plaintiff requested the defendant to stop the roll-over of the $10,000.00 Treasury Bill investment. From exhibit A the court finds that judgment in Suit No. BFS/451/2010 was delivered on the 15th March 2013. On the 24th July 2013, that is, a little over four months after judgment in Suit No. BFS/451/2010 had been delivered the plaintiff wrote exhibit 3 to the defendant. In the said exhibit, the court finds that, the plaintiff requested the defendant to suspend the roll-over of his $10,000 dollar equivalent Treasury bill investment with effect from the next maturity date and to furnish the plaintiff with an up-to-date statement of account to enable the plaintiff access his funds.
The court finds that as a result of exhibit 3 written by the plaintiff, the defendant bank prepared exhibit 4 captioned “Treasury Bills Authority to Stop Rollover” on the 5th August 2013. By exhibit 4 the defendant bank managed to stop the rollover of the GH₵6,265.00 and on the 30th September 2013 after the plaintiff had sent another email to the defendant, the defendant rediscounted the outstanding treasury bill of GH₵4,735.00 an realized an amount of GH₵4,658.08 which was short by GH₵76.92. The court finds from exhibit 6, a statement of the plaintiff’s account with the defendant that on the 12th August 2013, the defendant credited the plaintiff’s account with the sum of GH₵6,265.00. Again, the court finds from exhibit 6 that on the 10th October 2013 the defendant credited the plaintiff’s account with the sum of GH₵4,658.08 and also with the sum of GH₵76.92 on the 21st October 2013 representing the rediscounted Treasury bill and the shortfall. The total sum of credits amount to GH₵11,000 which is equal the cedi equivalent of the $10,000.00 Treasury bill which the defendant purchased on behalf of the plaintiff.
From the findings above the court holds that the defendant indeed carried out the plaintiff’s instructions to it to stop the roll-over of the plaintiff’s $10,000.00 or its cedi equivalent Treasury bill investment and as a result the defendant credited the plaintiff’s Savings Plus Account Number 0150403719000 with the sums of money realized from the Treasury Bill. The plaintiff has pleaded in his statement of claim that he has through several correspondence asked the defendant to furnish him with a statement of his account on the $10,000.00 or its cedi equivalent Treasury bill investment but the defendant has refused to make the said statement available to him. The plaintiff testified to this allegation in paragraph 15 of his witness statement and added that he instructed his lawyer to engage the defendant on this issue all to no avail. This allegation, as noted earlier, has been denied by the defendant. The defendant has testified to the effect that the statement of account was in fact sent to the plaintiff through the plaintiff’s lawyer and that when the plaintiff received the statement of account, the plaintiff wrote back to the defendant bank complaining of the falsification of his account. The defendant tendered in evidence exhibit 7 which is an email exchanges between the parties. In the said exhibit, the plaintiff wrote an email on the 20th November 2013 through his lawyer one Kofi Danso.
In the very first paragraph of the said email, the court finds that the plaintiff acknowledged the reception by him of the statement of account. And went ahead to complain about the money in the said account with the defendant. Even in his Reply to the defendant’s statement of defence, the plaintiff admitted, at paragraph 17 thereof, to receiving “a hard copy statement of account” which he found out later to be a sham. This court therefore finds from the evidence on record that the statement of account, contrary to the plaintiff’s assertion, was in fact made available to the plaintiff by the defendant. Under cross examination, the plaintiff gave the following answers to questions put to him in respect of the bank statement:
Q. Is it not the case that your bank statements are sent to you electronically?
A. I couldn’t even access them. That is why I sent Col Danso to you.
Q. Col. Danso was your lawyer.
Q: Did he ever report to you his dealings with the banks in respect of your statement?
A: He brought a statement of account from you which I said it is inconsistent with my 10,000USD investment; treasury bills. Lawyer Danso was frustrated by the defendant.
Q: So banks statements were given to you through Mr. Danso
A: Something in the guise of bank statement which I said was not consistent with the statement of account in relation to my 10,000USD treasury bills and I pointed it out to them immediately.
The court finds from the answers above that the plaintiff clearly admits to receiving the statement of account through his lawyer. Thus, the evidence of the plaintiff under cross examination is corroborative of the case of the defendant that the bank statement was sent to the plaintiff. It has been held in Asante vs. Bogyabi  GLR 232 at page 240:
Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view.
The court has therefore every reason to believe the evidence of the defendant about the fact that the bank gave the statement to the plaintiff; particularly, given that the plaintiff himself has corroborated that piece of evidence. From the totality of the evidence on record, the court is of the opinion that the plaintiff has not succeeded in proving that he is entitled to the reliefs endorsed on the writ of summons. Accordingly, the plaintiff’s action is dismissed.
Costs of GH¢6,000.00 to the Defendant against the Plaintiff.