MAMA ADESI COMPANY LIMITED v. UNIVERSAL MERCHANT BANK LIMITED

AMADU JSC:-

INTRODUCTION:

1)My Lords, the key issue for our determination in this appeal is, whether or not the two lower courts properly apprehended and evaluated the evidence on record within the context of the relevant applicable law before entering judgment for the Plaintiff and affirming same respectively. In other words, did the two Lower Courts properly allocate the statutory evidential burden on the party who carries that burden, and found on the evidence and applicable law that, the Plaintiff’s burden of proof had been satisfactorily discharged in accordance with the prescribed legal standard before they arrived at their concurrent positions which has given rise to this appeal?

2)From the undisputed facts of this dispute, the circumstances of the present appeal are stimulating. The Plaintiff, suspecting its General Manager (GM) to have misappropriated funds held in its accounts with Defendant’s bank, lodged a criminal complaint of fraud and stealing against the GM. The GM was arrested, charged with One Hundred and Fifty Nine (159) counts for the offence of stealing between 2004 and 2010, contrary to Section 124(1) of the Criminal and Other Offences Act, 1960 (Act 29) (as amended). The said GM, Konings Gbanaglo was subsequently convicted and sentenced. The Plaintiff not having realized its monies from the criminal process, issued a writ of summons, not against the GM but rather, against the Defendant Bank that held and managed Plaintiff’s accounts. The substance of the Plaintiff’s action, is for the Bank to refund monies unlawfully withdrawn from its accounts held with the bank.

3)The instant appeal thus, throws in the issue of whether the Defendant bank is liable for the refund of monies unlawfully withdrawn from Plaintiff’s account by Plaintiff’s GM. Should the bank be found to be negligent or breached the bank/customer relationship, within the peculiar facts of the present suit? Is the bank liable to Plaintiff for the funds unlawfully withdrawn by Plaintiff’s GM? These are relevant questions arising from the submissions of the parties in their respective statements of case which this court has been invited to answer having regard to the concurrent positions of the Trial Court and the Court of Appeal.

4)BACKGROUND TO THIS APPEAL

For brevity and convenience, the parties shall bear their respective designations at the trial court. The Plaintiff/Respondent/ Respondent shall be referred to as “the Plaintiff” while the Defendant/Appellant/ Appel