BOREALIS FOODS GHANA LTD. v. BARCLAYS BANK GHANA LTD.
2021
COURT OF APPEAL
GHANA
CORAM
- HENRY KWOFIE JA (PRESIDING)
- P. BRIGHT MENSAH JA
- OBENG-MANU JNR JA
Areas of Law
- Banking and Finance Law
- Contract Law
- Evidence Law
- Civil Procedure
- Commercial Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Borealis Foods Ghana Limited, an importer of frozen foods, sued its banker after a failed international wire transfer of US$50,000 intended for Turkish supplier OSKAYA/OZKAYA GIDA TIC LTD STI under a four-year supply arrangement. Borealis had been credited GH¢200,000 from a Carmensita Limited cheque, later debited without consent and re-credited, then converted to US$50,000 for transfer. The bank issued a SWIFT advice dated 7 April 2016, but the funds were returned because FIBABANK did not maintain an account with Citibank. OSKAYA terminated the contract, and Borealis claimed general damages and 40% expected profit loss. The High Court dismissed the action. On appeal, the Court of Appeal held Exhibit J did not confirm payment and that Borealis failed to prove negligent execution of the transfer, emphasizing the bank’s duty of care is not strict liability and the plaintiff bears the burden of proof. The appellate court declined to order re-crediting GH¢200,000 and dismissed both the appeal and the cross-appeal.
HENRY KWOFIE JA:
This is an appeal against the judgment of the High Court, Accra Commercial Division dated the 29th May, 2018. The plaintiff, by a Writ of Summons filed on 10-08-2016 claimed against the defendant/respondent the following reliefs:
a) General damages for the loss of the contract with OSKAYA GIDA TIC LTD STI as a result of the defendant’s conduct.
b) Compensatory damages for the loss of the 40% profit from the contract with OSKAYA GIDA TIC LTD STI as a result of the defendant’s breach of its contract with the plaintiff pursuant to the banker-customer relationship.
c) Costs including legal fees
d) Any other orders that this honourable court may deem fit.
The facts giving rise to this appeal are that the plaintiff/appellant company (hereinafter referred to as the plaintiff) is a company incorporated under the laws of Ghana and engaged in the import and sale of frozen fish and meat products while the defendant company is also incorporated in Ghana and engaged in the business of banking. The plaintiff’s case was that it held two accounts one in cedis and the other in dollars with the defendant bank. The plaintiff’s case was that it was issued with a First Atlantic Bank cheque No. 30660 with a face value of Two Hundred Thousand Ghana Cedis (GH¢200,000) by its client Carmensita Limited for goods supplied. It presented this cheque on 9th November 2015 and the defendant credited its cedi account with the face value of the cheque on 10th November, 2015. The plaintiff averred further that without its consent, the defendant later proceeded to deduct the said amount of GH¢200,000 from its account on 15th December, 2015. On being confronted on the issue, the defendant refunded the said amount into plaintiff’s account. Thereafter, the plaintiff said it authorized the defendant to convert the GH¢200,000 into dollars which amounted to fifty thousand Dollars ($50,000) and to pay same into its dollar account. It then instructed the defendant to transfer the said amount to its client OSKAYA GIDA TIC LTD STI (OSKAYA) with which it had a Ten Million Dollar contract ($10Million). According to the plaintiff, it had a four (4) year supply agreement with the said OSKAYA and this amount of $50,000 was meant to be a part-payment of frozen food products supplied to it. The plaintiff averred that although the defendant supplied it with a SWIFT receipt confirming the transfer of the $50,000 to its suppliers, OSKAYA had complained that it had not received payment for