Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday, June 18, 2014
A private
financial institution, International Commercial Bank (ICB), which allowed
non-customers to withdraw huge sums of money from a customer’s account, has
been punished by an Accra Fast Track High Court for negligence.
Between
October 25, 2011 and November 16, 2011, the bank was said to have allowed seven
separate withdrawals totaling GH¢55,500.00 from the account of a company called
Tabbi Enterprise Limited without the permission of the account holder.
As a
result, the court, presided over by Justice L.L. Mensah after full trial, ordered
International Commercial Bank Limited to forthwith pay GH¢55,500.00 to Tabbi
Enterprise, which “it unlawfully, wrongfully and negligently paid to persons
unknown to the plaintiff.”
The court
said the bank should pay the amount with interest from October 25, 2011 till
date of final payment and also awarded GH¢5,000 cost against the bank.
The Managing
Director Thomas Amponsah Ababio, the plaintiff sought reliefs including a
declaration that the defendant was “negligent in honouring impugned cheques
which bore signatures of the plaintiff’s Managing Director as captured on the
defendant’s mandate card for plaintiff’s Managing Director.”
The plaintiff,
led by Prof. Ken Attafuah of Law Place, averred that they opened a current
account at the International Commercial Bank Makola Branch in Accra and the
sole signatory to the account was Mr. Ababio.
Between
October and November 2011, several withdrawals were made from the said account
at several branches of the bank in Accra and the withdrawals had been made with
cheques that did not emanate from the plaintiff since he did not sign those
cheques.
When the
plaintiff detected the anomaly, he reported to the Makola Branch and was
informed that CCTV captured images of two young men Obeng Aning and Nyaho
Shepherd, who made the various withdrawals.
The bank,
represented by Simon Okyere of Fugar & Co as counsel had admitted that GH¢55,500.00
was fraudulently withdrawn from the account of the plaintiff but insisted that the
bank had exercised due diligence before the payments.
According
to the court, when the parties were ordered to file their addresses, the
defendant refused and therefore, Justice Mensah said “the instant judgment is
without any input from the defendant.”
“I don’t
think this issue is in controversy. I said so because both parties are in
agreement that GH¢ 55,500.00 was fraudulently withdrawn from the account of the
plaintiff. The only problem is that each part is disclaiming responsibility as
to whose negligence caused that huge sum of money to be lost to the plaintiff.”
The court
held that under both common law and statute, the bank had breached the duty of
care it owed the plaintiff by failing to ensure that monies could only be
legally paid from its account upon his signature.
The judge
further said that the rapidity with which the huge sums were paid out from the
plaintiff’s account should have put the bank on its toes, adding “sadly the
defendant failed to be alive to its responsibility to the plaintiff.”
“I think
the work of a bank is not only to receive and pay back to customers their money.
The bank is also enjoined to put its professional expertise and technical
competence in detecting and beating fraudsters.”
“As far
as the duty and responsibility of the defendant bank are concerned, the bank
was to pay the plaintiff on its demand for payment of money duly authorized
from its account. Any unauthorized mandate from a third party is the problem of
the defendant.”
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