Lamptey Vrs Sunda International Company Ltd and Another [2022] GHAHC 11 (14 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON FRIDAY THE 14TH DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SUITNO: GJ/1501/2017 PLAINTIFF BISMARK LAMPTEY NORTH LINK HOSE NO. 10 GBAWE ACCRA VS 1. SUNDA INTERNATIONAL COMPANY LTD. DEFENDANTS NEAR BUSIA JUNCTION ORDERKOR BRANCH, ACCRA 2. PRUDENTIAL BANK LTD. ODORKOR BRANCH, ACCRA JUDGMENT By his further Amended Writ of Summons, the Plaintiff claims against the Defendants as follows:- 1. An Order directed at the Defendants to pay the amount of Thirty Seven Thousand, Eight Hundred Ghana Cedis, (GH¢37,800.00) being money wrongfully paid to the 1st Defendant by the 2nd Defendant. 2. Interest on all amounts due, owning till date of final payment. 3. General Damages of Five Hundred Thousand Ghana Cedis (GH¢500,000.00) against Defendants for negligently transferring money from the Plaintiff’s accounts without the Plaintiff’s consent and authorization. 4. General Damages of One Million, Five Hundred Thousand Ghana Cedis (GH¢1,500,000.00) against the Defendants for the permanent ear damage or conditions they subjected the Plaintiff’s life into. 5. Cost. The Plaintiff initially instituted this suit against the 1st Defendant but later applied and joined the Prudential Bank Limited, Odorkor Branch, Accra to the suit as the 2nd Defendant. PLAINTIFFS CASE: Plaintiff states that he got to know the 1st Defendant on the 23rd October 2014 when the 1st Defendant caused the Police to arrest him on the grounds that he (Plaintiff) had stolen the 1st Defendant’s money from its office. According to the Plaintiff when the Police arrested him, the Policemen subjected him to severe beatings which had even up to date resulted into a permanent ear injury. The Plaintiff states that in course of the investigation, the Police Investigator of the case, one Sgt Yakubu Iddrisu handcuffed him and took him to the Odorkor Branch of the 2nd Defendant’s Company to sign the statement/balance request form, and the Plaintiff complied. A minute later, the Branch Manager came back and instructed the Plaintiff to instead thumbprint the statement/balance request form since that had been the mode the Plaintiff had been using in dealing with the Bank. Plaintiff accordingly thumbprinted the statement/balance request form. After thumbprinting, Sgt. Yakubu Iddrisu informed him that his account number is 0170161365014. The Police further told the Manager to freeze the Plaintiff’s account. The Plaintiff was later arraigned before the Circuit Court 9, Accra for prosecution. The Plaintiff as an accused was subjected to a trial at the Circuit Court, Accra on the charges of:- 1. 2. 3. Unlawful entry Causing unlawful damage and Stealing an amount of One Hundred and Four Thousand, Four Hundred and Eight Ghana Cedis (GH¢104,408.00) belonging to the 1st Defendant. At the end of the criminal trial, the Plaintiff the then accused person was acquitted and discharged per Exhibit ‘B’. After his acquittal and discharge, the Plaintiff went to the Odorkor Branch of the 2nd Defendant with the Court Judgment in the criminal case and further requested the Manager to unfreeze his accounts. It was then that the Manager informed the Plaintiff that upon the advice of Sgt. Yakubu Iddrisu and the leadership of the 2nd Defendant’s Bank, a total of Thirty Seven Thousand, Eight Hundred Ghana Cedis, (GH¢37,800.00) has been transferred from his accounts to the 1st Defendant’s accounts being the money they alleged the Plaintiff had stolen from the 1st Defendant. The Plaintiff requested for his Bank Statement which confirmed the said transfer. DEFENDANTS CASE: The 1st Defendant refused to appear in Court on many occasions despite the several Hearing Notices extended to it. The first Defendant had therefore refused to participate in the Case Management Conference by not filling a Witness Statement. On the 27th April 2021, the Court therefore stuck out the 1st Defendant’s defence and counter-claim and proceeded with the C. M. C. 2nd DEFENDANT’S CASE: 2nd Defendant states that the Plaintiff is its customer of its Odorkor Branch. On the 14th November 2014, the Plaintiff filed out a payment Order of Thirty Seven Thousand, Seven Hundred and Sixty One Ghana Cedis, Thirteen Pesewas (GH¢37,761.13) in favour of the 1st Defendant. The Plaintiff thumbprinted the request form and thus authorized the issue of the Payment Order. The 2nd Defendant handed over the Payment Orders to the Plaintiff who then left the Bank. The 2nd Defendant states that the Plaintiff claims that the Bank issued the payment Order on the instructions of a Police Officer is not correct as the Bank customer relationship is a contractual one to which a third party has no right to intermeddle and/interfere, except by a Court Order. The Bank cannot unilaterally transfer money out of the Plaintiff’s accounts without the Plaintiff’s firm instructions. There was not any coercion on the Plaintiff as the Bank’s records show that the Plaintiff instructed the 2nd Defendant to issue a Payment Order and the 2nd Defendant also carried out the said instructions. ISSUES At the close of the pleadings, the following issues was set down for trial:- 1. Whether or not the Plaintiff was wrongly arrested, charged, arraigned and tried before the Court for stealing. 2. Whether or not at the points of arrest the Plaintiff was subjected to severe beatings as a result had his eardrum damaged. 3. Whether or not the Plaintiff was acquitted and discharged. 4. Whether or not the Plaintiff’s Thirty Seven Thousand Eight Hundred Ghana Cedis, (GH¢37,800.00) in an account made with 2nd Defendant was wrongly withdrawn from the said account by 2nd Defendant to the 1st Defendant without the consent of the Plaintiff. 5. Whether or not the 2nd Defendant being Bankers to the Plaintiff owes the Plaintiff a duty of care to protect the interest of the Plaintiff. 6. Whether or not the Plaintiff is entitled to his claim. DETERMINATION OF ISSUES: The issue as to whether or not the Plaintiff was acquitted and discharged is not far-fetched. Exhibit ‘B’ which is the judgment after the criminal trial of the Plaintiff, the then accused is clear that the accused person was found Not Guilty in the criminal trial and accordingly acquitted and discharged. I must however quickly mention here that the fact that the accused person was acquitted and discharged after his criminal prosecution per se does not mean that his arrest, investigation and prosecution by the Police are automatically unlawfully. It is the case of the Plaintiff that the entire predicament suffered and continues to be suffered by the Plaintiff was as a result of the unguided and unreasonable report the 1st Defendant’s company lodged to the Police. The Plaintiff therefore claims General Damages against the 1st Defendant for his suffering, both physical and mental. The Court of law seeks to protect the 2 conflicting interest of prosecuting alleged criminals and the same time too the freedom of the individuals who are alleged to be criminals. The law equally sees it very important that individual’s freedom from unnecessary arrest and prosecution should be protected. It is this protection of the individual right that the Plaintiff had initiated this action against the Defendants to protect. The Plaintiff claims Damages against the 1st Defendant especially after his acquittal in the criminal prosecution. The case of:- Musa v Limo-Wulana [1975] 2 GLR 290 had decided that for a Plaintiff to succeed in an action for tort, General Damages etc. after his acquittal the Plaintiff must prove five elements against the Defendant. 1. That the Defendant initiated a prosecution against him. 2. The criminal proceedings terminated in the Plaintiff’s favour. 3. That the Defendant undertook or instigated or procured the prosecution, with no reasonable or probable cause. 4. That the Defendant acted maliciously and 5. That the Plaintiff suffered damages as a result of the prosecution. The Plaintiff in his Witness Statement was able to establish that upon a report made to the Police by the Defendant, the Police initiated a criminal prosecution against him and same ended in his favour. Plaintiff might suffered damages in terms of loss of income, time spent, inconveniences as a results of the criminal prosecution. The Plaintiff could not positively established that the 1st Defendant acted maliciously or under took to instigate the Police to prosecute him without any reasonable or probably cause. The matters that are not doubted on the records is that the theft occurred at the 1st Defendant’s Company, after the security camera was viewed the cashier of the 1st Defendant’s suspected the Plaintiff to be the thief and reported the Plaintiff to the Police which led to the prosecution of the Plaintiff. In the case of: Narwu v Armah [1972] 2GLR 331 CA It was held that where a complainant gives information to a Police Officer, and the officer acts according to his own judgment and makes an arrest, investigate and prosecute the case and the accused find Not Guilty, the Complainant incurs no liability for non-of the events that followed the information given by the complainant. In Musa v Limo Wulana [1975] 2 GLR 290 It was held that it is where the information given by A to the Police is to his knowledge false, that A would be liable to any action or event that would follow his false information. The Plaintiff in this case also gave evidence that the 1st Defendant led the Police to his house to arrest him. In my view however that alone do not constitute instigation. See the case of: Nkrumah v Foli [1982-83] GLRD 106 Held: To accompany the Police to point out the Plaintiff to them is not instigation. In the case under consideration, the evidence adduced by the Plaintiff is that the 1st Defendant made a complaint of stealing against the Plaintiff to the Police. The Police acted on the complaint and arrested, investigated and prosecuted the Plaintiff, the 1st Defendant cannot therefore be held liable for General Damages. I am however inclined to believe that when the Police arrested the Plaintiff, the Plaintiff was subjected to severe beatings by the Police. It is not however established on the records by the Plaintiff that it is the 1st Defendant who instructed the Police to subject the Plaintiff to the said severe beatings. The Police on their own accord subjected the Plaintiff to the severe beating and the Police must be made liable for this misguided conduct. Unfortunately, this Court as earlier constituted declined to join the Police to this suit as 3rd Defendant. The Police are therefore not Defendants in this case to enable me to make a pronouncement against them in this delivery with regard to the severe beatings they subjected the Plaintiff to. I now come to the major issue of:- “Whether or not the Plaintiff’s Thirty Seven Thousand Eight Hundred Ghana Cedis, (GH¢37,800.00) in his accounts made with the 2nd Defendant was wrongly withdrawn from the said account by the 2nd Defendant to the 1st Defendant without consent of the Plaintiff”. The Plaintiff states that during the investigation of the Criminal case, Sgt. Yakubu Iddrisu handcuffed him to the Odorkor Branch of the 2nd Defendant’s Company. In respect of how the Plaintiff’s money was withdrawn from his accounts at the 2nd Defendant’s outfit to the 1st Defendant, the Plaintiff has this to say in his paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24 & 25 of his Witness Statement as follows:- “16. One day whiles at the Police cells the C. I. D in charge of the case, Sgt. Yakubu Iddrisu handcuffed me and took me to the Odorkor branch of the 2nd Defendant’s Company. 17. When we got to the bank at Odorkor, the Police investigator told me he brought me to the Bank to continue with the investigation of the matter. 18. The Police investigator then made me sit at the Banking Hall and told me he was going to see the Manager of the 2nd Defendant’s Company. 19. Few minutes later, the Branch Manager of the 2nd Defendant came to me holding a statement/balance request form. 20. The Branch Manager then asked me to sign the statement/balance request to form, a direction I complied with. 21. After the said signing, the Branch Manager took the Statement request form away. Few minutes later, the Branch Manager returned saying I should instead thumbptrint on the form since that is what I have been doing for withdrawals and otherwise. 22. I complied with the Branch Manager’s directives and thumbprinted the statement/balance request form. See Exhibit A. 23. After I did the thumbprinting, the manager then took the statement request form from me and left for her office. 24. Few minutes later, the investigator came to me and informed me that my accounts No. 0170161365014 with 2nd Defendant’s bank has been frozen. 25. The investigator took me back to the cells”. With these pieces of evidence adduced on the records, Counsel for the Plaintiff submits that when the Bank Manager saw the Plaintiff in the Company of a Policeman in the bank, that Company was enough to suggest to the Bank Manager that something is fishy and wrong and same needed to be investigated. The Manager ought to have safeguarded the interest of its client and ensure the fiduciary relationship between the Plaintiff and the Bank. The branch Manager however went ahead and transferred the Plaintiff’s money at their outfit to the 1st Defendant. Counsel for the Plaintiff submit that the Branch Manager of the Plaintiffs bank was negligent to her duty by transferring the Plaintiffs money to the 1st Defendant. It is not disputed on the records that the 2nd Defendant indeed transferred the sum of Thirty Seven Thousand Eight Hundred Ghana Cedis, (GH¢37,800.00) at their outfit from the Plaintiff’s account to the 1st Defendant. Paragraph 5 of the Plaintiff’s Amended Statement of Claim records as follows:- “Prior to the completion of the Plaintiff’s Criminal trial, the Plaintiff was coerced by the Police into paying an amount of Thirty Seven Thousand Eight Hundred Ghana Cedis, (GH¢37,800.00) to the 1st Defendant through 2nd Defendant who are the Plaintiff’s Bankers”. Indeed I believe that the effort made by the Plaintiff into transferring the said amount to the 1st Defendant was actuated by the inducement and coercion of the Plaintiff by the Police investigator. The Plaintiff was with the idea that the said payment was effected in settlement of the money concerned in the theft case. It however turned out that the Plaintiff (then accused) was declared innocent in the criminal case. The crucial question however is “was the said coercion effected on the Plaintiff by the Police manifested when the Plaintiff appeared before the Manager of the Odorkor Branch of the 2nd Defendant’s Company. In the Plaintiff’s own Witness Statement, the Plaintiff stated that when the Manager came in with the statement/balance request form, she asked the Plaintiff to sign and he did. Plaintiff continued that later the Bank Manager came to say that the mode by which the Plaintiff had been withdrawing money or otherwise from the Bank is by the Plaintiff’s thumbprint, and so the Plaintiff thumbprinted. Wherein therefore hlies the coercion in this transaction between the Plaintiff and the Bank. I hold that a coercion on the Plaintiff by the Police cannot be ruled out but the Court cannot deduce any manifest coercion by the 2nd Defendant’s Bank and the Plaintiff in this transaction. The 2nd Defendant cannot therefore be held to be liable for negligence of duty. The Plaintiff had raised an issue that the name “Bismark Lartey Lamptey” was endorsed on the payment order and not his real name. “Bismark Lantey Lamptey” I detect the Plaintiff middle name “Lantey” spelt as “Lartey”. This is an error in the spelling of the Plaintiff’s name but since the transaction referred to the real account No. 0170161365014 same refers to the Plaintiff’s account and the mere mistake of spelling the Plaintiff’s middle name wrongfully would not invalidate the transaction. To conclude, the Policemen whom the Plaintiff had said tortured him during the arrest could have been held liable if the Court had heard them and maintain the Plaintiff’s story but they are not parties in the case. There is no evidence on the records that the 1st Defendant instructed the Police to beat the Plaintiff. 1st Defendant cannot be held liable for any beatings of the Plaintiff. Plaintiff relief (iv) is dismissed. Plaintiff could not also establish any negligence of duty against either the 2nd Defendant or 1st Defendant. Plaintiff relief (iii) is refused. There is however evidence that the Plaintiff’s Thirty Seven Thousand Eight Hundred Ghana Cedis, (GH¢37,800.00) was transferred by the 2nd Defendant to the 1st Defendant. From the evidence on records, the 1st Defendant do not merit that sum. 1st Defendant should therefore refund same and interest thereon to the Plaintiff. I therefore grant Plaintiff’s reliefs (i) and (ii) against the 1st Defendant. The interest on the said sum should be at the current Commercial Bank rate to be calculated from the date the amount was transferred to the 1st Defendant that is from 14th November, 2014 to the date of final payment. Cost of ¢20,000.00 against 1st Defendant. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: THOMAS GBLORVU ESQ, FOR THE PLAINTIFF OPOKU AMPONSA ESQ, FOR THE 1ST DEFENDANT FELICIA SARKU NETTEY FOR THE 2ND DEFENDANT 13