MAMA ADESI COMPANY LTD VRS MERCHANT BANK (GH) LTD (H1/83/2020) [2021] GHACA 19 (22 April 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: SENYO DZAMEFE JA P. BRIGHT MENSAH JA JANAPARE BARTELS-KWODWO JA PRESIDING SUIT NO. H1/83/2020 22ND APRIL 2021 BETWEEN: MAMA ADESI COMPANY LTD … PLAINTIFF/RESPONDENT vs MERCHANT BANK (GH) LTD … DEFENDANT/APPELLANT JUDGMENT =================================================== BRIGHT MENSAH JA: The High Court, Accra (Commercial Division) gave two (2) judgments in this case, the first on 8th day of November 2017 and the next, delivered 25th day of June 2019. Whilst the defendant/appellant describes the first judgment as interlocutory, the latter is classified as the final judgment. Both decisions went in favour of the plaintiff/respondent, as against the defendants/ appellants. It is not unusual for a losing party to appeal against a decision of the court. Thus, the defendant in the instant case is in this court, having appealed against both judgments. In considering this judgment, we shall resort to both appeals and discuss the respective grounds on which the defendant/appellant is appealing. The first notice of appeal headed “Notice of Interlocutory Appeal” filed 27/11/2017 appears on p. 464 roa (Vol. 1) whilst the Notice of Appeal taken as the final appeal filed 30/07/2019 appears on pp 149-151 roa vol.3. For purpose of clarity, we set out here below first, the grounds of appeal in the “Notice of Interlocutory Appeal” specified as follows: (i) The judgment is against the weight of the evidence. (ii) The trial judge erred in holding the expert report ie Exhibit 3 as unreliable in finding that the withdrawals from the plaintiff’s account were made without sufficient mandate. (iii) The trial judge erred in failing to give due weight to the testimony of the defendant’s witness Da Costa Owusu Doudu in particular in finding that the defendant failed to satisfy the requirements of the Bills of Exchange Act. (iv) The trial judge erred in ordering Exhibit V is to be used to ascertain what is due the plaintiff given that: (a) The most of the alleged withdrawals (if not all) as set out in Exhibit V were not supported with any documentation. (b) Some of the alleged withdrawals as set out in Exhibit V were credits to the plaintiff’s account. © The alleged withdrawals as set out in Exhibit V were randomly selected without any accounting justification. (v) The trial judge failed to consider the issue as set down for trial as to whether or not the plaintiff must be deemed to have had expert advice in the management of the plaintiff’s account with the defendant at all material times to March 2011 up to the first notification of the defendant of its allegations and to have ratified all transactions of the plaintiff’s agent with the defendant up to March 2011 the first notification of the defendant of its allegation. (vi) The trial court having found that the plaintiff breached its duty of care to the defendant by not timeously discovering the wrongful withdrawals failed to impose liability upon the plaintiff. (vii) Further grounds of appeal will be filed upon receipt of record of appeal. The grounds of appeal as contained in the “Final” Notice of Appeal filed 30/07/2019 appearing on pp 149-151 roa vol. 3 also stipulate: 1) The judgment is against the weight of the evidence. 2) The trial court erred in law by inter alia failing and refusing to strike out the substantive suit as being a nullity and of no legal effect given that at the time the substantive action was initiated, Counsel for the plaintiff was not licensed to practice pursuant to section 8(1) of Act 32. PARTICULARS OF ERROR OF LAW a) The trial judge misconstrued the import of the Supreme Court proceedings in The Republic v High Court (Land Division), Accra, Exparte: Numo Adjei Kwanko II, Lebanon Society Interested Party, Civil Motion No. JS/53/2017 dated 28 March 2017. b) The trial judge failed to appreciate that fact that when there is a conflict between case law and statute law, statute law must prevail. c) The trial judge failed to apply the binding decision of the Supreme Court in the case of Nana Ampofo Kyei Baffour v Justmoh Construction Co. Ltd & 4 others, Civil Appeal No. J4/51/2016 dated 14 June 2017 contrary to Article 129(3) of the 1992 Constitution. 3) The trial judge erred in law in ordering that Exhibit V be used to ascertain what is due to the plaintiff/respondent. PARTICULARS OF ERROR OF LAW a) Exhibit V was self-serving document compiled by the plaintiff/respondent and therefore carried little or no evidential value. 4) Further grounds of appeal will be filed upon the receipt of record of appeal. So far as the records go, no further or additional grounds of appeal have been filed prior to the hearing of this appeal. In this appeal, the designation of the parties shall be maintained. That is to say, the plaintiff/respondent shall be referred to simply as the plaintiff and the defendant/appellant, the defendant. The suit: It shall be recalled that on 10/02/2012, the plaintiff caused to be issued in the registry of the lower court, a writ of summons and endorsed thereon, some judicial reliefs against the defendant. A statement of claim accompanied the writ. Pursuant to leave of the lower court granted 19/05/2015, both the writ and the statement of claim were amended. Consequently, the plaintiff claimed against the defendant as follows: “(1) An order compelling the defendant to pay forthwith to the plaintiff the various sums of money proven by the plaintiff as having been withdrawn wrongfully from the various accounts that plaintiff operated for about 2 decades with the defendant with interest thereon at the prevailing bank rate from the date of the wrongful withdrawal to the date of final payment. (2) Refund by the defendant to the plaintiff of all amounts of money for which the defendant had no legitimate authori- zation(s) to debit plaintiff’s accounts. (3) Refund by the defendant to the plaintiff of all interests charged on plaintiff’s account over the years on the basis of wrongful debits. (4) Refund by the defendant to the plaintiff of all interests charged on the plaintiff’s accounts from 2003 to date. (5) An order cancelling any loans and/or overdrafts purportedly granted to plaintiff by defendant through subterfuge. (6) An order compelling the defendant to return to the plaintiff security documents obtained from the plaintiff through subterfuge. (7) General damages. (8) Costs.” See: pp 152-157 roa vol. 1. Counterclaim: Pursuant to leave granted to the plaintiff to amend its writ and statement of claim, the defendant exercised the right of filing an amended statement of defence on 26/05/2015 denying substantially the plaintiff’s claims and also counterclaiming against the plaintiff as follows: “a. an order directed at the plaintiff for the payment of Ghc683,058.01 which said amount was advanced to the plaintiff at its request by the defendant but remains wholly unpaid, due and outstanding despite several requests for payment “the full details of which are set out in agreement dated 26 October 2009.” b. interest thereon from 24 December 2011 until the date of final payment. c. Costs and such further order or orders the honourable court may deem fit.” See: pp 147-151 roa vol.1. In a swift response to the amended statement of defence, the plaintiff filed on 01/06/2015, an amended reply and defence to the defendant’s counterclaim. Denying the defendant’s claim, the plaintiff averred in the reply, inter alia, that the present action was not restricted by the Limitation Act, 1972 and that the law could not be used to defeat the principles of equity. The plaintiff equally contended that the defendant is not a regulatory authority or a shareholder within the intendment of the Companies Act, 1963 and therefore not a proper party in that context to claim that the plaintiff company failed to comply with the requirements of Act 179 to keep “proper books of account”. See: pp 157 -159 roa vol.1 It is noted that the defendant with leave of court further amended its defence but the counterclaim remained unaltered. See: pp 233-236 roa vol.1. Plaintiff’s case: Briefly stated, the plaintiff company opened with the defendant bank and was operating various bank accounts with it, the transactions having gone on for several years. It is not in any serious dispute that the plaintiff operated as many as thirteen (13) accounts with the Accra Main branch of the bank. The plaintiff’s case is that some time later, the bank served it with a demand notice to repay a loan facility that plaintiff contended did not apply for it or accessed it. Consequently, the plaintiff undertook a reconciliation of its accounts and detected that colossal sums of money ie Ghc27,892,140.97; US$13,343,440.91 and GB£233,175.00 were unlawfully and illegally withdrawn from its accounts with the bank. The plaintiff alleged that the documents, including “letters” used for the withdrawals did not have its authority and consent to warrant withdrawals from its accounts. It further contended that the documents/letters used in withdrawing those quantum of money did not satisfy the strict requirements of the Bills of Exchange Act, 1961 (Act 55) because there were no clear order to pay. There were no endorsement by the plaintiff; there were no certainty as to sums of money payable that involved foreign currencies and there were also no clear certainty as to the payee on each of the documents/letters used in the withdrawals of the money, it maintained. The plaintiff company’s Managing Director (M. D) is an illiterate. That fact was uncontested. The company insisted that the M. D was the sole signatory to all the accounts and that she never endorsed the payments of the money illegally or unlawfully withdrawn from the accounts in contention. It was on those grounds that the plaintiff initiated the present action, claiming the reliefs as endorsed on the writ. The defence: In its amended statement of defence, the defendant contended that the claim of the plaintiff is statute barred. It claimed further that the reconciliation the plaintiff carried was without the participation of the defendant and therefore, self-serving. It was their case again, that the plaintiff as a limited liability company failed to comply with the Companies Act, in that it failed to keep “proper books of accounts”. The defendant also accused the plaintiff of not appointing a duly qualified Auditor as required by the Companies Act to prepare annual Auditor’s Report for the company. It was the case of the defendant also that insofar as the plaintiff was a limited liability company it was deemed to have had expert advice and actual knowledge of its accounts with the bank at all material times prior to March 2011. The plaintiff was therefore estopped from instituting the present action, the defendant stressed. Furthermore, the defendant avers that any fraud the plaintiff detected in the withdrawals of the money was perpetrated solely by Konings Francis Gbanaglo, the plaintiff’s General Manager and that the defendant at all material times acted in good faith and in the ordinary course of business. The internal forensic audit the Criminal Investigation Department of the Ghana Police Service conducted confirmed that all payments the bank made were all made in good faith either to the Managing Director of the plaintiff company or her duly appointed agent, Konings Francis Gbanaglo. The defendant claimed again that the said Konings Francis Gbanaglo was subsequently charged with stealing and was convicted and sentenced by the High Court, Accra (Financial Division) to terms of imprisonment. It is their case, therefore, that the plaintiff is estopped by conduct. Issues set down by the pre-trial judge for trial: It is important to stress that the instant case being one of a commercial nature is regulated by Order 58 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Per rule 8 of Order 58, parties to the case are to appear in a pre-trial conference where it was expected that the pre-trial judge before whom the parties appeared would assist them in settling the case at that stage. If the pre-trial was unsuccessful or where no amicable settlement was reached, the pre-trial judge considering the pleadings the parties filed shall raise issues joined in the case for consideration of the trial court. In compliance with the rule of procedure, it is on record as appearing on pp 22-23 roa vol.1 the pre-trial judge raised the following issues for trial by the trial judge: 1. Whether or not the defendant fraudulently followed settled banking rules and best practices in making huge payments out of the various accounts belonging to the plaintiff-company. 2. Whether or not the defendant fraudulently paid out moneys from the plaintiff’s accounts with the bank. 3. Whether or not it was wrongful for defendant-bank to refuse to honour the plaintiff’s written requests for the release of any statements or authorization documents in relation to plaintiff’s accounts. 4. Whether or not the defendant is indebted to the plaintiff an amount Ghc37,315,106.45 since March 2011. 5. Whether or not the defendant withdrew from the plaintiff’s various accounts the amount of Ghc37,315,106.45 through want of utmost good faith, due care best practices the full details of which are set out in paragraph 6 of the statement of claim. 6. Whether or not the defendant as at all times during the period that it has handled the plaintiff accounts in good faith in or the regular course of business. 7. Whether Konings Gbanaglo is or was the plaintiff agent at all times material to the various allegations made against the defendant. 8. Whether or not the plaintiff against Konings Gbanaglo has committed any fraud against the plaintiff and or the defend- ant at all times material to the plaintiff suit against the defendant. 9. Whether or not the plaintiff agent Konings Gbanaglo can be held liable or responsible for whatever losses incurred by the plaintiff (if at all). 10. Whether or not the plaintiff is indebted to the defendant in an amount of Ghc683,058.01 in respect of a facility entered into between the plaintiff and the defendant on 26 October 2009. 11. Whether or not plaintiff is entitled to its claim against the defendant. 12. Whether or not the defendant is entitled to its counterclaim. 13. Any other issues as may be disclosed on the parties’ pleadings. As stated supra, the end of the trial, the learned trial judge determined the case in plaintiff’s favour. It is against these judgments that the appellant has mounted these appeals. Appeal is by way of rehearing: The settled rule is that an appeal is by way of rehearing the case. This court is therefore enjoined by law to scrutinize the evidence led on record at the trial and make its own assessment of the case as though it was the trial court. Where the appellate court finds that the lower court came to the right conclusion based on the evidence and the law, it affirms judgment of the lower court. It is a truism that where the judgment is unsupportable by the facts and or the evidence it risks being set aside on appeal. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. In Tuakwa v Bosom (2001-2002) SCGLR 61, the Supreme Court laid down the rule as follows: “An appeal is by way of re-hearing, particularly where the Appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence……… In such a case, it is incumbent upon an appellate court in a civil case on analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.” [emphasis mine] Determination of the appeal: Having regard to the issue Counsel for the appellant raised as to the propriety of the writ, claiming that at the time the writ was issued the lawyer for the respondent then did not have licence to practice, which issue goes to the root of the case, I deem it paramount to first deal with that ground of appeal stated as Ground 2 in the notice of appeal filed 30/07/2019 [pp. 149-151 roa vol.3]. It goes as follows: “The trial court erred in law by inter alia failing and refusing to strike out the substantive suit as being a nullity and of no legal effect given that at the time the substantive action was initiated, Counsel for the plaintiff was not licensed to practice pursuant to Section 8(1) of Act 32.” Particulars of errors of law the learned trial judge allegedly committed were set out in the ground of appeal. As recounted supra, the appellant has strenuously put the validity of the writ in issue. Learned Counsel for the appellant has argued with much force that the lawyer who initiated the action did not have a valid licence or was not licensed to practice law at the time he filed the writ. That, Counsel impressed on the court, was contrary to the mandatory provisions of the Legal Profession Act, 1960 (Act 32). In Counsel’s view, the learned trial judge erred in holding otherwise. In support of his submissions, he relied on such cases as R v High Court (Fast Track Division); Exparte Teriwah – Suit No. J4/24/13; Nana Ampofo Kyei Baffour v Justmoh Construction Co. & 4 ors, Civ. Appeal No. J4/52/2016 and R v High Courtt (Land Division), Accra, Exparte: Nuuno Adjei Kwanko II (Lebanon Society – Interested Party) – Civil Motion No. JS/53/2017 delivered 28/03/2017. Having referred this court to Exparte Teriwah ante and the other cases, Counsel then submitted that the learned trial judge erred when she held that Exparte Teriwah case did not have retrospective effect. In other words, the lower court was wrong to hold that decision of the Supreme Court being later in time did not have retrospective effect on the validity of the writ in the instant case. Counsel for the respondents per contra, has also quite strongly submitted that the ground of appeal referred to ante, is not properly laid before this court. He explained that the notice of appeal that has generated the instant appeal as clearly stated in the notice, was against the judgment of the court delivered 25/06/2019. However, the ruling of the lower court on the issue as to the propriety of the writ, was handed down much earlier. Thus, once the earlier decision of the lower court was not appealed against, the appellant cannot now raise it as a ground of appeal. Counsel next argued that there is also no evidence that leave has been granted for the appellant to file additional grounds to allow appellant to include the ground complained of, in its submissions. That, according to Counsel, is an attempt by the appellant to smuggle into its submissions, ground of appeal not stated in the notice of appeal. I roundly agree with submissions of learned Counsel for the respondent that this ground of appeal is improperly laid before this court and therefore an abuse of the legal process. It is trite learning that an appeal is a creature of statute. It is also a right principle of law to state that no litigant has an inherent right of appeal. Therefore, a litigant must exercise a right of appeal by filing his appeal within the perimeters as set out by the law and within the statutory period. Indeed, the Court of Appeal has no inherent jurisdiction to hear an appeal if the appellant failed to exercise his statutory right of appeal not in the manner prescribed by law. See: R v Cape Coast Circuit Court Registrar; Exparte Arthur (1980) GLR 165 C/A. As an appellate court, this court’s jurisdiction is properly invoked only when an appeal against the decision of a lower court is filed within the statutory period and or with leave of court. It is noted that the writ was filed in the year, 2012 yet the motion filed by the lawyer for the appellant to have the case dismissed on account that the lawyer who filed the writ did not have a valid licence to practice was on 11/12/2017. See: pp 23-32 roa vol.2. For reason not apparent on record, the same process was refiled on 20/12/2017 with the return date as 10/01/2018. See: pp 35-144 roa vol.2. It is important to observe that the arguments of the lawyer did not find favour with the learned trial judge as same were refused on 12/03/2018. Our view is that the decision of the trial court not to dismiss the suit was interlocutory since that did not determine completely, the rights of the parties. Being an interlocutory decision if the appellant was minded to appeal that decision, it should have done so within 21 days from 12/03/2018 in compliance with Rule 9(1) of the Court of Appeal Rules (CI 19). As a matter of law, a party who lost the opportunity for any reason to appeal an interlocutory decision within the statutory period cannot apply for an extension of time except where it is a final decision. See: Rule 9(1)(b) & (4) of CI 19. As stated elsewhere in this judgment, the trial court’s ruling refusing the application was on 12/03/2018 and that appears on pp 282-284 roa vol.3. There is nothing on record to show that the defendant ever launched an appeal against that refusal of the court to dismiss the writ. Having waited till the end of the trial and to file a notice of appeal against the judgment of the lower court given on 25th June 2019 the defendant cannot lawfully and legitimately now raise that decision of the lower court refusing to strike out the writ as a ground of appeal. It bears emphasis that the appellant being hopelessly out of time in not appealing against that interlocutory decision, it cannot smuggle that ground of appeal into the notice of appeal filed 30/07/2019. Next, as rightly pointed out by learned Counsel for the respondent, the notice of appeal that gives legitimacy to this court’s jurisdiction was filed on 30/07/2019. That judgment of the lower court complained of, did not decide on the impropriety of the writ. Thus, it is palpably wrong for the appellant to raise it as a ground of appeal filed against the judgment. Put differently, once the judgment of 30/07/2019 did not decide on the impropriety or otherwise of the writ, the appellant cannot now raise it as a ground of appeal. It needs reiterating that grounds of appeal like pleadings, have to be raised at the earliest opportunity and within the perimeters created by statute. It was in that respect that the Supreme Court stated the law in Amos Wedzi v Hotel Majoirie “Y” Ltd & 2 ors, Civ. App. No. J4/45/2013 dated 07/05/2014 as follows: “Grounds of appeal are like pleadings at the beginning of a trial. They form the basis of any trial and elaborate provisions exist in the rules of court as to how pleadings are supposed to be done. The rules of procedure are evidence show how pleadings are supposed to be formulated and what can go or should not go into pleading; when to amend pleadings with or without leave are all taken care of by the rules.” On the authorities new matters not raised in the lower court are generally not allowed to be raised for the first time in an appellate court. The Supreme Court adopted and applied the rule in Mrs Vicentia Mensah (suing per Attorneys) v Numo Adjei Kwanko II, Civ. App. No. J4/17/2016 dated 14/06/2017 where the law was stated: “Even though all appeals in this country being first or second appeal is by way of rehearing, new matters not raised at the lower court generally are not allowed to be raised in an appellate court for the first time. This court in Penkro v Kumnipa (1987-88) 1 GLR 558, stated per Sowah JSC (as he then was) at page 561 that: ‘courts should not be ready to permit unsuccessful parties to attempt to overturn judgment by raising new considerations.” [emphasis added] Our view, therefore, is that the appellant in our instant case can only argue this ground of appeal if he sought leave of the court by amending the notice of appeal and including it in the amended notice of appeal pursuant of leave so granted in terms of Rule 8(7) of CI 19. See: Kumasi Metropolitan Assembly v Mr Peter Osei Assibey (2019) 129 GMJ 45. The point the Supreme Court made in the case of FKA Co. v Nii Tackie Amoah VI & ors (Civil Appeal No. J4/1/2016 dated 13/02016 (unreported) is apt. The court speaking through Akamba JSC observed: “…………it is important to stress that the adjudication process thrives upon law which defines the scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appro- priate relevant provision, be it substantive law or procedural law. As courts if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold.” In Ayikai v Okaidja III (2011) SC GLR 205 the Supreme Court reiterated that non- compliance with the rules of court could result in fatal consequences as they not only constitute an irregularity but raise issues of jurisdictional nature as to whether or not the jurisdiction of the court has by the irregularity been properly invoked. Now, having regard to appellant’s failure to appeal against the decision of the lower court for its refusal to dismiss the writ, I hold that this ground of appeal violates and or offends rule 9(1) of CI 19. Consequently, l do hereby strike it down as being improperly laid before this court. Put differently, the jurisdiction of this court has not been properly invoked to enable the court consider this ground of appeal. The ground of appeal is therefore dismissed. Now, the other grounds of appeal. 1st Ground of appeal: Judgment against the weight of evidence: This court has always been guided by the principle that where an appellant has complained that the judgment cannot be supported having regard to the evidence led at the trial, it was incumbent on the appellant to so demonstrate it. The settled law is that when an appeal hinges on that omnibus ground that the judgment is against the weight of evidence, duty is cast on the appellant to demonstrate the lapses contained in the judgment complained of. See: Djin v Musah Baaku (2007-2008) 1 SCGLR 686. The case, Owusu-Domena v Amoah (2015-2016) 1 SCGLR 790 is the legal authority for saying that the contention that a judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law by the appellate court. The Supreme Court in R v Central Regional House of Chiefs & Ors; Exparte Gyan IX (Andoh X – Interested Party) Civil Appeal No. J4/11/2013 of 19/07/2013 (unreported) restated the principle that an appellant has a duty to clearly show where the court below went wrong or where it failed to take into consideration all the circumstances and the evidence or had drawn wrong inferences without any evidence in support. See also: The R v Eastern Regional House of Chiefs; Exparte Divine Tetteh Ologo & 5 ors (KK Nyumutei & 5 ors – Interested Parties) (2017) 114 GMJ 63 CA. Making primary findings of fact is the preserve of the trial courts and whenever such findings are supported by evidence on record, they are not to be disturbed. See: Quaye v Mariamu (1961) GLR 93 SC; Nkansah v Adjabeng (1961) GLR 465. In sum, therefore, the appellant who contends that a judgment is against the weight of evidence carries the burden to demonstrate that per the judgment of the trial court, the court overlooked some vital and or relevant pieces of evidence which if it took into consideration and properly applied them, would have titled the outcome in his favour. The central issue lying at the heart of the case/appeal is whether the appellant bank fraudulently paid out moneys from the respondent’s accounts which issue can conveniently be dovetailed into the omnibus ground that the judgment is against the weight of evidence. Is it indeed the case that the judgment of the lower court is against the weight of evidence? Now, having regard to the evidence led on record, I hold that both judgments of the lower court are supportable by evidence led on record. The trial judge made some crucial findings of fact touching on the mandate for the withdrawals of monies from the respondent’s accounts. The evidence established that the accounts were first opened in April 1994. By a board resolution of the respondent company and as appearing on the signature card of 1994, Exhibit D6, Mama Adesi (the M. D) was sole signatory to the accounts and she was to thumbprint all cheques drawn on the accounts. It is ironic that documents the respondent company requested from the appellant bank in discoveries revealed that in the year, 2006 another mandate came into existence. But the respondent company took issue with it claiming that apart from the 1994 mandate [Exhibit D6], it had not presented any other signature to the bank. It bears stressing that the learned trial judge observed that the remarkable difference between the specimen signature cards was that whilst the 1994 mandate had the thumbprint of Mama Adesi with the company stamp, the 2006 signature card had in addition to the thumbprint of Mama Adesi and the company stamp, an inscription “taken by Konings”. At p. 6 of the first judgment [p.458 roa vol.1] the learned trial judge held: “In the absence of a board resolution authorizing the change of mandate to include an inscription “taken by Konnings”, I uphold the submission by Counsel for plaintiff that the withdrawals were wrongful and did not meet the mandate. Defendant failed to discharge the onus of satisfying the court that Exhibit D was the authorized mandate of plaintiff.” I uphold the finding of the lower court on account that the appellant carried the burden to prove the positive when the respondent company denied the assertion that the first mandate was ever changed or altered and at its instance. On the balance of probabilities, the story of the respondent company is preferable to the appellant’s because if there was any such change in the mandate, the company was required to have supported it with a board resolution. In absence of evidence to the contrary, this court finds that the respondent never consented to any change of, or alteration in the 1994 mandate. It is reasonable therefore to hold that all withdrawals based on the 2006 mandate were unlawful and wrongful and sins against S. 1(1) of the Bills of Exchange Act, 1961 (Act 55). That provision of the law stipulates: “(1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum of money to or to the order of a specified person or to bearer.” By operation of law, an instrument which does not comply with the above provision of the law or which orders an act to be done in addition to the payment of money, is not a bill of exchange. See: S. 1(2) of Act 55. Learned Counsel for the appellant in his written submissions [pp 19-21] referred the court to Ss 1(1) & 5(1) of the Bills of Exchange Act 1961 (Act 55) and submitted that the Managing Director of the respondent company, Mama Adesi never came to court to prove that the signatures on the “letters” addressed to the appellant bank authorizing payments of monies complained of, were never hers. Our simple reaction is that there is no fixed rule of law that impels a party who initiated an action in a court of law to mount the witness box himself to prosecute the claim. He reserves the right to elect another person to offer evidence on his behalf. See: In re: Ashalley Botwe Lands (2003-2004) 1 SCGLR 420. Consequently, we hold that Christopher Walayon Kojo Eissabah who works with an auditing firm, Alex Thompson & Co as its Tema Manager and was in court to represent the respondent company and offered evidence at the company’s instance did not offend any rule of procedure or law. The evidence by Eissabah was credible and the trial court having had the opportunity to watch his demeanour in the witness box believed his testimony and preferred it to the appellant’s. I have no good reason to upset the primary findings of fact the learned trial judge made. This ground of appeal therefore fails and it is hereby dismissed. Ground (iii) The trial judge erred in failing to give due weight to Da costa Owusu Doudu’s testimony. The appellant bank justifying the withdrawals invited Da costa Owusu Duodo of Debt Collection and Recoveries Department of the bank to give evidence. In his testimony, he stated that the letters attached Exhibits B, E and F the basis on which the withdrawals were made, were clear instructions from the respondent to have the company’s accounts debited. According to him, in practice where there were no clear indication as to payee, the money was paid to the bearer. He maintained that at all material times in this case, the bearer was Konnings Gbalanogo who was the company’s agent. In his testimony as appearing on p. 305 roa vol.1, Da costa Owusu Duodo in reaction to the respondent’s complaint that the withdrawals done by letters instead of cheques were unlawful, intimated that a cheque was unnecessary. He explained that a cheque has a specific a/c number written on it and if it was a cedi cheque book, a cedi cheque cannot be used to draw on a euro a/c. He said further that withdrawals in the instant case were not unlawful because the kind of transactions were by written instructions because they involved the purchase of foreign currency. Dacosta Owusu Duodu in his testimony on 13/02/2017 [pp 300-302 roa vol.1] claimed that all withdrawals were lawful. In explanation to a question that the respondent company has accused the bank for paying 2000 pounds sterling from its cedi a/cs, the witness stated that it was still a lawful withdrawal. That was because the bank had to look through the customer’s various a/cs and if it did not find any money therein go to the external market and purchase 2000 pounds for the customer. Much as we agree with the witness that a cedi cheque cannot be used to draw on foreign currency a/c, the established evidence in the instant case is that the appellant bank provided the respondent company with cheques books that have the bank name printed on each cheque book. As the trial judge found and the finding supported by the evidence on record, the mandate the respondent company gave to the appellant bank to facilitate withdrawals from its accounts was the 1994 mandate. That mandate did not include written letter in addition to presentation of cheques or sole demand was by written letters. It is reasonable, therefore, to hold that if after 1994, particularly from 2006 letters were to be issued and accepted by the appellant bank there should have been an express instruction from the company in that regard and accompanied by a board resolution of the company. All these requirements are absent in the instant case and the appellant bank has not explained it with any degree of certainty why it went contrary to the existing mandate to sanction those huge withdrawals. It has argued on behalf of the appellant that Konings Gbalago was the General Manager of the respondent company at the time. Therefore, all businesses he transacted with the bank as regards withdrawals were ratified by the respondent company. Having referred us to Ss 58 & 90 of Act 55 Counsel submitted that the appellant acted in utmost good faith and in the ordinary course of business. In support, he relied on the English case of Lipkin Gorman (a firm) v Karpane Ltd (1992) 1 All ER 331 @ 349 where it was stated: “……… a bank is not obliged to question any transaction which is in accordance with the mandate, unless a reasonable would have grounds for believing that the authorized signatures are misusing their authority for the purpose of defrauding their principal or otherwise defeating his true intention. It follows that if a bank does not have reasonable grounds for believing that there is fraud, it must pay. Mere suspicion or unease do not constitute reasonable grounds and are not enough to justify a bank in failing to act in accordance with a mandate. A bank is not required to act as an amateur detective.” Additionally, Counsel referred us to Macmillan Inc. v Bishopgate Investment Trust Plc. (No.3) (1995) 1 WLR 977 where Millet J stated: “……….. Accounts officers are not detectives. Unless and until they are alerted to the possibility of wrongdoing, they proceed and are entitled to proceed on the assumption that they are dealing with honest men. In order to establish constructive notice, it is necessary to prove that the facts known to the defendant made it imperative for him to seek an explanation because in the absence of an explanation it was obvious that the transaction was probably improper.” Per contra, learned Counsel for the respondent in his written submissions has argued that the respondent owed no duty to the appellant bank to disclose any act to the bank and no question of estoppel arose from mere silence, omission or failure to act. He referred the court to S. 72 & 1(1) of Act 55 and advocated that in the absence of express agreement to the contrary the duty of care owed by a customer of his bank was limited to a duty to refrain from drawing a cheque in such manner as to facilitate fraud or forgery and a duty to inform the bank of any unauthorized cheques purported drawn on the account as soon as the customer became aware of it. The customer was not under a duty to take reasonable precautions in the management of his business with the bank to prevent forged cheques being presented for payment nor was under a duty to check his periodic bank statements so as to enable him to notify the bank of any unauthorized debit items, because such wider duties were not necessary incidents of the banker/customer relationship. In support of this legal proposition, Counsel relied on Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd & ors (1985) 2 All ER 948. For my part, I rather doubt, as the trial judge did, whether the respondent ratified those transactions and withdrawals for the mere fact that Konnings Gbalago was the General Manager of the respondent company. Admittedly, Gbalago was the General Manager. However, the act of ratification is both a matter of fact and law which legal proposition finds expression in the Supreme Court case of Awuku v Tetteh (2011) 1 SCGLR 366 where the law was stated thus: “The conditions on how an agent’s acts might be validly adopted or ratified by his principal were: (i) the acts must have been done for, and in the name of the supposed principal, and (ii) full knowledge of them, and unequivocal adoption after knowledge, must be proved; or else the circumstances must warrant the clear inference that the principal was adopting the acts of his supposed agent what- ever their nature and culpability. Ratification must be evidenced by clear adoptive acts or by acquiescence.” It is worth repeating that it has been the case of the appellant that the bank acted in utmost good faith when its officials dealt with Konings, the agent of the respondent company. It is appropriate to observe that the handwriting expert the appellant bank invited to offer evidence on its behalf was unable to prove with any degree of certainty, the signature [thumbprint] appearing on the letters Konings used in those fraudulent withdrawals was that of Mama Adesi. The alleged maker of the bill having not been proved, the purported bill did not satisfy the requirement of the Bills of Exchange Act (Act 55). There is that overwhelming evidence that the only mandate the respondent company sanctioned was the 1994 one and not the withdrawals by letters. The withdrawals by means of letters by Konings was out of the ordinary and contrary to the existing mandate which should have put the bank on enquiry. Judicial notice is taken that the Mama Adesi, the M. D of respondent company is an illiterate so Konings, the General Manager took undue advantage of her and was stealing from her company typical of the spurious withdrawals he made. There is no evidence to support the finding that the respondent company or the M. D ever ratified the crimes Konings perpetrated on the company. It is the judgment of this court that notice of what is so out of the ordinary course of events as to arouse doubts in a banker’s mind or put him on enquiry is a relevant test of negligence. The appellant bank having closed its naked eyes to the existing mandate and paid huge sums of money from the respondent’s a/cs outside that mandate was clearly gross negligence on their part. The cases Counsel for the appellant cited supra, though good law, are therefore distinguishable from the instant case and thus, inapplicable. In the result, we hold that this other ground of appeal also fails and it is dismissed. Ground (3): The trial judge erred in law in ordering that Exhibit V be used to ascertain what is due to the plaintiff/respondent. As stated elsewhere in this judgment, the evidence led in this case supports the findings by the lower court. As the learned trial judge found [p. 459 roa vol. 1], a close examination of Exhibit B revealed that contrary to S. 5(1) of Act 55 all the letters used for the withdrawals did not have a named payee. Additionally, it was not indicated on the face of the letters that the monies were to be paid to the bearer. The withdrawals were grounded on the 2006 mandate which the court has already held did not have the sanction of the respondent company because no board resolution accompanied it. On the totality, the lower court found that the respondent was entitled to judgment except that part of the claim before 2005 caught by Statute of Limitation. What was also left was the quantum of claim the respondent was entitled to. It therefore ordered the Registrar to use Exhibit V to work out the quantum of the claim. The learned trial judge having warned herself on the law on expert evidence accepted the evidence of the court appointed expert, an Accountant of the Judicial Service and adopted his report for purposes of her judgment. The judge therefore entered judgment in favour of the respondent in the sum of Ghc8,708,852.12 and US$980,000.00 being monies that were unlawfully and wrongfully taken out of the respondent’s a/cs. On the law, the trial court applied the right principle in In re: Agyekum (dec’); Agyekum & ors v Tackie & Brown (subst’d) Adjindah & ors (2005-2006) SCGLR 851 to the case and held that the report was a useful and credible guide and had no reason to dispute its outcome. We have no good reason either to doubt the reliability of the report and hold that the outcome of the court is supportable by the evidence. In the result, this ground of appeal also fails and is hereby dismissed. Ground (4): The trial judge erred in holding the expert report ie Exhibit 3 as unreliable in finding that the withdrawals from the plaintiff’s account were made without sufficient mandate. The appellant bank claiming that the court appointed expert’s report contained inconsistencies and therefore unreliable, commissioned a Samuel Yaw Kwakye to submit a second report. His evidence as appearing on pp 128-131 roa vol.3 disagreed with the formula and the compilation of the figures the court appointed expert applied. It is trite learning that expert evidence is not binding on the court and the judge reserves the right either to adopt it or reject it and come to its own conclusion based on the totality of the evidence led in the case. We think the lower court exercised its discretion judicially when it did not place much weight on the expert evidence Yaw Kwakye offered. We do not therefore intend to interfere with it. Consequently, we dismiss this ground of appeal as unmeritorious. Learned Counsel for the appellant has strenuously stressed that the respondent company owed it as a duty of care to the bank to have had expert advice. He relied on some provisions of the Companies Act and argued that if the respondent, for eg., engaged an auditor to audit the company’s a/cs and was filing annual returns with the Registrar- General’s Department it would have discovered the fraud of its agent, Konings Gbnaglo and alerted the bank of the said fraud. Failure to do, in the opinion of Counsel, the consequence was that the respondent breached its duty towards the appellant to ensure that fraud was not perpetrated on the bank. We are not impressed with this kind or argument. Admittedly, and as is undisputed, the M. D of the respondent company, Mama Adesi is an illiterate. That being so, it may be reasonable to agree that the governance structure of her company was not the best. However, that did not absolve the appellant bank from calling her attention to fraudulent withdrawals from her company’s a/cs when at all material times those withdrawals were outside the mandate she sanctioned in 1994. It cannot be overemphasized that there existed a contractual relationship between the parties herein and it is unchallenged that the respondent opened 13 separate accounts with the appellant bank spanning from Ghana Cedis a/cs to foreign currencies. What constitutes a banker-customer relationship and the duration of that relationship was extensively discussed in Taxation Commissioners v English, Scottish & Australian Bank Ltd (1920) AC 683. It was held in the case supra that to determine whether or not a banker customer relationship had been established duration of the relationship was not of the essence. The following passage in the judgment is worth reproducing here: “Their Lordships are of the opinion that the word ‘customer’ signifies a relationship in which duration is not of the essence. A person whose money has been accepted by the bank on the footing that they undertake to honour cheques up to the amount standing to his credit is, in the view of their Lordships, a customer of the bank in the sense of the statute, irrespective of whether his connection is of short or long standing. The contract is not between an habitue and a newcomer, but between a person for whom the bank performs a casual service, such as, for instance, cashing a cheque for a person introduced by one of their customers, and a person who has an account of his own at the bank.” It is instructive to note that the appellant bank in the instant appeal in a memorandum received in evidence as Exhibit D 3 [pp 3-4 roa vol. 4] had acknowledged and classified the respondent company as a first class company and records showed that it was making an average monthly sales of about c206 million [old currency]. The operation of 13 separate a/cs with the bank meant that the respondent company made huge investments in the bank. After all, financial services thrive on trust and it was expected that such a 1st class company ought to be protected from fraud and or any other step that may work adverse to the company at all times. The appellant bank stood in fiduciary relationship to the respondent company and ought to have protected its interest. Overall, it is our respectful view that the instant appeal lacks merit and it is hereby dismissed in its entirety. Costs in favour of the respondent assessed at Ghc P. BRIGHT MENSAH (JUSTICE OF APPEAL) 32