THOMAS AMETRI v. ECOBANK GH LTD
2022
COURT OF APPEAL
GHANA
CORAM
- SENYO DZAMEFE JA (PRESIDING)
- AMMA GAISIE JA
- NOVISI ARYENE JA
Areas of Law
- Contract Law
- Banking and Finance Law
- Tort Law
- Evidence Law
- Civil Procedure
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arises from Ecobank Ghana a0liability to its customer after GH a244,000 was debited as a purported DSTV bill payment. The respondent discovered the debit on 14 January 2013, immediately complained and sought reversal, but the bank refused. Ecobank a0claimed a fraudulent customer accessed the respondent a0online banking and transferred funds and relied on an exclusion clause in its online banking terms that purportedly absolved it of liability for third-party use. The High Court found the bank negligent and rejected the exclusion clause for lack of proper notice and incorporation. On appeal, the Court of Appeal, per Aryene JA, reviewed the record, held the burden lay on the bank to prove authorization or infiltration, found the bank a0failed to do so, ruled that onerous terms require timely and sufficient notice, affirmed negligence given the unusual, large DSTV payment without mandate or verification, and dismissed all four grounds, affirming the High Court judgment.
NOVISI ARYENE JA:
By judgment delivered on 27th June 2016, the High Court (Land Division) upheld plaintiff’s claims for recovery of GH¢44,000.00 from defendant plus interest thereon and damages for breach of contract. Dissatisfied with the decision, defendant is before us per Notice of Appeal filed on 27th July 2016, praying for the whole judgment to be set aside. In this judgment, plaintiff will be referred to as respondent and defendant as appellant.
The facts are that, respondent is a customer of the appellant bank. On 14th January 2013, respondent detected that his account has been debited with the sum of GH¢44,000.00 without any recourse to him. Upon scrutiny, he realized that the debit entry was in respect of a purported payment of accrued DSTV bills. Respondent contends that he has never paid his DSTV bills through appellant bank. Although he immediately lodged a verbal complaint against the debit, and followed it up with a formal protest letter to appellant requesting the reversal of the debit, appellant failed to do so. Hence the instant action for breach of contract, payment of penal interests at 10% per day on the said sum from 11th January 2013 till date of final payment, damages for breach of contract and payment of GH¢20,000.00 being costs of the instant action.
The action was vehemently resisted by the appellant. In its statement of defence, appellant averred that the account of respondent was accessed by a customer, who fraudulently transferred the money into his account with the bank. Denying liability, appellant averred that a subscriber to the bank’s online banking service was bound by terms and conditions which clearly state that the bank does not guarantee the operating security of its network and shall not be liable for consequences of use by third parties in cases of fraud or unauthorized use. And that upon subscribing to the online banking service, the customer furnishes the bank with his user name and password with which the bank creates the customer’s Ecobank private data storage space. And that each customer was fully responsible for the use and safekeeping of his personal data package and the consequences of their disclosure to third parties.
It was further averred that in subscribing to the online banking service, the customer declares that he is aware of risks inherent in the use of the service and declares that he fully accepts to assume the consequences of the use of the user name and personal security package of a custo