PETER EGYIN MENSAH v. INTERCONTINENTAL BANK (GH) LIMITED
November 25, 2009
SUPREME COURT
CORAM
- DATE-BAH, JSC (PRESIDING)
- ANSAH, JSC
- ADINYIRA (MRS.), JSC
- OWUSU (MS), JSC
- BAFFOE-BONNIE, JSC
Areas of Law
- Civil Procedure
- Banking and Finance Law
November 25, 2009
SUPREME COURT
CORAM
AI Generated Summary
In this Supreme Court appeal from Ghana, the personal representatives of the late Comfort Mensah, a Susu collector, challenged the Court of Appeal’s ruling that their second suit was barred by res judicata. Comfort Mensah had two savings passbooks with Citi Savings & Loans Co. Ltd., later Intercontinental Bank (Ghana) Ltd., for accounts 3838 and 8541. After a High Court default judgment in BFS/3/06 ordering reconciliation, the bank filed Exhibit M showing balances of GH¢105.01 and GH¢134.88, which the representatives disputed, asserting GH¢49,249.01 was due. Their application for a court expert was refused as functus officio, and they commenced RPC/107/06 seeking payment and challenging Exhibit M. Although the trial court found a new issue and ruled for them, the Court of Appeal reversed, holding the causes of action were the same. The Supreme Court, per Adinyira JSC, affirmed, explaining default judgments can ground estoppel only for issues necessarily decided, the reconciliation issue was concluded, and the proper remedy was appeal, not a fresh suit.
J U D G M E N T
SOPHIA ADINYIRA (MRS) JSC:
This an appeal against the Judgment of the Court of Appeal dated 6 November 2008 allowing an appeal against the judgement of the High Court (Commercial Division) Accra dated 27 July 2007 on the sole ground of estoppel by res judicata. In order to appreciate fully the issues raised for determination in this appeal we must look at the history of the whole litigation.
Background
The genesis of this appeal is that the plaintiffs/respondents/ appellants (hereinafter plaintiffs) are the personal representatives of the late Comfort Mensah a Susu collector. The deceased in her lifetime operated two Savings Passbooks with Citi Savings & Loans Co. Ltd. with Account Numbers 3838 and 8541. The Defendant/ appellant /respondent (hereinafter defendant) changed its name from Citi Savings & Loans Co. Ltd. to Intercontinental Bank (Ghana) Ltd. The plaintiffs undertook a reconciliation exercise in respect of the Passbooks A/C No. 3838 and 8541 respectively with bank statements supplied by the defendant. According to the plaintiffs the reconciliation disclosed that deposits recorded in the Passbooks did not reflect in the bank statements. The total amount deposited in the Passbooks which did not reflect in the bank statement was GH¢50,910.00, as per paragraph 6 of their statement of claim. They had several meetings with the defendant to reconcile the passbook entries with the bank statements but could not resolve the issue among themselves. The plaintiff therefore issued a writ with suit no. BFS/3/06 at the High Court (Commercial Division) Accra on 23/1/2006 claiming against the defendant:
1. An order directed at the defendant to reconcile the passbook entries with the statement of accounts to reflect the true state of the amounts deposited in the Savings Accounts Numbers 3838 and 8542 belonging to Comfort Mensah (deceased) which the defendant bank failed to capture in the respective Bank Statements issued to the plaintiffs by the defendant.
2. Interests on the amounts which the defendant has failed to credit the deceased’s accounts with from the respective dates on which they should have been credited up to and inclusive of the date of payment.
3. Costs.
The defendant entered appearance but failed to file a defence. On 27 February 2006, the trial Court entered a judgment in default of defence against the defendant on all the reliefs claimed by the plaintiffs. On 7 March 2006, the plaintiffs filed an Entry of Judgment for