BOADU VRS ZENITH BANK (GH) LTD (H1/50/2022) [2022] GHACA 109 (21 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: HENRY A. KWOFIE JA PRESIDING P. BRIGHT MENSAH JA RICHARD ADJEI-FRIMPONG JA SUIT NO. H1/50/2022 21ST JULY 2022 PLAINTIFF/APPELLANT BETWEEN: KENNEDY GYEKYE BOADU … vs ZENITH BANK (GH) LTD … DEFENDANT/RESPONDENT ======================================================== JUDGMENT ================================================= BRIGHT MENSAH JA: The High Court (Commercial Division), Accra after trial of the case the subject of the instant appeal, delivered its judgment on 28th day of May 2020 and dismissed the claim of the plaintiff/appellant herein. It is against the judgment of the lower court that this appeal has been launched on the grounds listed here below. That is to say: i. ii. The judgment is against the weight of evidence. The judge erred in law when he ruled that on a holistic interpretation of parties’ agreement, plaintiff/appellant did not live up to the purpose and intendment of Exhibit A when as required under the agreement and industry practice plaintiff/appellant sold all e-cash purchased from defendant to various MTN subscribers. iii. The learned judge erred when he found that plaintiff/appellant engaged in round tripping using related entities when in fact no evidence of return of e-cash back to defendant was established. iv. The learned judge arrived at a wrong conclusion of facts unsupported by the evidence adduced when he held that Ecobank Ghana made a demand for payment on defendant. v. The learned trial judge misconceived the import of Exhibit 3 and thereby occasioned plaintiff/appellant substantial miscarriage of justice. vi. Further grounds of appeal would be filed upon receipt of the record of proceedings. See: pp353-355 of the record of appeal [roa] I need to put it on record that no further grounds of appeal were ever filed. By this appeal the plaintiff/appellant seeks from this court, the reversal of the judgment of the court below whilst judgment be entered in his favour. In this appeal, the plaintiff shall henceforth be referred to simply as the appellant and the defendant, respondent respectively. The suit: It is common ground that the appellant on the 1st day of June 2018 caused to be issued in the registry of the High Court (Commercial Division), Accra the writ of summons accompanied by a statement of claim by which suit appellant claimed against the respondent, the under-listed judicial reliefs: 1. An order for recovery of the sum of Eighty Eight Thousand Two Ghana Cedis Fifty Pesewas (Ghc88,082.50) being unpaid com- mission for the month of June 2017. 2. Interest at defendant’s commercial lending rate on the sum of Ghc 88,082.50 from July to 2017 to the date of final payment. 3. Special damages of Ghc88,082.50 from July 2017 for loss of business. 4. General damages for breach of contract. 5. Costs on a full indemnity basis. Although the writ was subsequently amended, the claims endorsed thereon remained unaltered. Issues for trial: At the close of pleadings, the appellant raised the following issues for the consideration of the court: 1. Whether or not plaintiff legitimately discharged his contractual obligation under the agreement dated 2/05/17. 2. Whether or not plaintiff’s transactions and/or dealing for the month of June 2017 were prohibited by the terms of the agreement and/or the industry guidelines. 3. Whether or not defendant’s failure and/or refusal to pay the accrued commission for June 2017 is a total breach of the terms of the agree- ment dated 2/05/17. 4. Whether or not plaintiff is entitled to the recovery of the sum of Ghc88,082.50 being the unpaid commission for June 2017. Additional issues: It is noted, the respondent also raised the following additional issues for trial: a. Whether or not the plaintiff conducted himself in the manner contemplated by the parties under the agreement. b. Whether or not the plaintiff sold the digital currency to other related entities and persons not within the contemplation of the agreement. c. Whether or not the plaintiff misrepresented to the defendant that it has the capacity and merchants with whom to transact the business of selling digital cash. d. Whether or not the plaintiff is entitled to recover commission arising out of his breaches of the agreement. e. Any other issues that may arise from the pleadings. Per the court notes as appearing on pp 53-54 [roa] the learned trial judge made the following orders, inter alia, concerning the issues filed: “By court: I have looked at the application for directions as well as the issues contained in the notice of additional issues filed by the defendant. In order to avoid duplicity of issues, Issues I, II, III, IV of the application for directions, as well as Issues 2, 3 and 5 of the additional issues are hereby adopted by the court as the issues for determination.” Judgment of the lower court: The judgment that appears on pp 330-352 [roa] made some profound findings of fact, notably the allegation of fraud against the appellant unproven; the appellant never disclosed his related entities ie KG Cash Services and KG Blog to the respondent; the appellant’s allied entities purchased e-cash from the respondent bank and offloaded them to a competitor bank, Ecobank before eventually landing at the respondent bank for which Ecobank made demand on Zenith, the respondent herein by which appellant earned his commission. By so doing, so held the lower court, the appellant was engaged in round tripping. In the final analysis, the court dismissed the claims of the appellant. As recounted supra, it is against this judgment that the instant appeal has been launched. Resolution of the appeal: The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. This rule has received ample judicial interpretation in a legion of cases to mean that the appellate court is enjoined by law to review the whole evidence led on record and to come to its own conclusion and to make a determination as to whether both on the facts and the law, the findings of the lower court were properly made and were supportable. Put differently, the appellate court is under legal obligation to examine the findings of the lower court or the trial court, and to determine on the evidence led on record, whether those findings are supportable in law. On the authorities, where a trial court that heard the evidence has made findings based on the evidence and come to the conclusion in a case, an appellate court is not required ordinarily, to disturb those findings except where there is lack of evidence to support the findings or the reasons for the findings are unsatisfactory. As Pwamang JSC stated in Prof Stephen Adei & Mrs Georgina Adei v Grace Robertson & Sempe Stool (Civ. App. No. J4/2/2015) delivered 10/03/2016) (unreported), an appellate court may reverse findings of a lower court where they are based on a wrong proposition of law or a rule of evidence or the findings are inconsistent with documentary evidence on record. Indeed, it is settled law that where the findings are clearly unsupported by evidence or where the reasons in support of the findings are unsatisfactory, the appellate court reserves the power to upset those findings of the trial court. See: Kyiafi v Wono [1967] GLR 463 @ 466. It is important to stress also that where the findings are based on wrong proposition of law, the judgment of the lower court is liable to be set aside. The case, Robins v National Trust Co. [1972] AC 515 illustrates the principle that where the finding is so based on erroneous proposition of law the appellate court is empowered to correct it and having corrected it, the impugned findings then disappear. I now proceed to consider the merits or otherwise of the appeal. Ground (ii), (iii), (iv) & (v) combined: I think grounds ii), iii), iv) and v) can be conveniently combined and addressed together since they speak to the findings of facts the lower court made that adversely affected the appellant’s claim. I shall then proceed finally to deal with the other ground of appeal that the judgment is against the weight of evidence. Grounds ii), iii), iv) & v) may be summarized as follows: a. the interpretation the lower court put on the agreement, Exhibit A was erroneous; b. the finding of that the appellant was engaged in round tripping was unsupportable by the evidence; c. whether appellant perpetrated fraud on the respondent; d. the respondent led no evidence to prove that Ecobank ever made a demand for payment on the respondent; and e. the lower court put a wrong interpretation on Exhibit 3 thereby occasioning a gross miscarriage of justice to the appellant. I shall start off by considering the allegation of fraud against the appellant. The respondent variously pleaded in their amended statement of defence in paragraphs 8, 10 and 14 that the appellant fraudulently misrepresented that he had sub-agents in various locations when he had none; also breached the agreement. That accounts for appellant being denied commission complained of. In paragraph 8 of the statement of defence, the particulars of fraud were set out as follows: i. plaintiff represented to the defendant that it had capacity to provide the serves to merchants in various locations when it indeed knew at the time that it had no such capacity; ii. plaintiff did not have any such agents, retailers or sub-agents contrary to the representations that led defendant to contract with plaintiff; iii. plaintiff was using its “other entities” to deceive the defendant; iv. when defendant expressly requested to meet its agents to examine the extent of its market reach, the plaintiff woefully failed to disclose the agents and has to date, failed to disclose their identities; v. plaintiff knew at the time of contracting and long after that it had no agents but “other entities”. It is material to point out that the appellant per his reply vehemently denied the allegation of fraud the respondent raised and thereby joined issue with the respondent on the allegation. It cannot be over-emphasized that once the respondent made the allegation of fraud but which allegation appellant denied in his reply and demanded strictest proof thereof, on the law the respondent carried the burden to prove fraud. And the question is, did the respondent prove fraud? A party who alleges wrongdoing carries the higher burden to prove the criminality by proof beyond reasonable doubt as required by S. 13 of the Evidence Act, 1975 (NRCD 323). It is also provided in S. 15 of NRCD 323 thus: “unless and until it is shifted, the party claiming that a person is guilty of a crime or wrong doing has the burden of persuasion on that issue”. In view of the serious allegation the respondent in the instant appeal made imputing criminality that is to say, fraud against the appellant, the burden was cast on the former to lead evidence to prove it beyond reasonable doubt. See: Okofoh Estates Ltd v Modern Signs Ltd & anr [1995-96] 1 GLR 310. On general principle, the court is not to find fraud unless particulars thereof has been distinctly pleaded and proved strictly, for a finding of fraud is not to be made without clear and cogent evidence upon it. See: Thomson v Eastwood [1874-77] 2 AC 215 HL @ p.233 per Lord Cairns L. C. The respondent in an attempt to prove those allegations of fraud and misrepresentation in our current case invited as a witness, Isaac Dagartey who in his witness statement and under cross-examination insisted the appellant perpetrated fraud principally because he never disclosed to the respondent that he was to sell the digital currency to merchants through his related entities ie. KG Services, KB Glob Services, KB-RIGMA Ent., and G- KAB Services. Indeed it was alleged that those related entities were set up ostensibly to advance the appellant’s fraudulent activities. Additionally, the respondent contended that the appellant in breach of the agreement, Exhibit A purchased digital currency through his company, Digital Cash Services and sold same to himself through his related entities after which those entities resold them to the respondent or lodged it with other banks in exchange for cash. With those deposits, appellant succeeded in repeating the trade and then claimed commission under the agreement, the respondent claimed. In support of that contention, learned Counsel for the respondent in her written submissions at p.24 has urged on this court to find that the appellant sold Ghc24,810,000.00 to KB Rigma, Chc5.300,000.00 to Ecobank Elubo, Ghc1,400,000.00 to KG Cash Services and Ghc1,895,000.00 to KS Glob Services alone all in total, Ghc33,405,000.00 representing 93% of the total whilst only 7% was offered to all other vendors. It was Counsel’s view, therefore, that the appellant was selling the e-cash to himself through his related entities. On the totality of the evidence led on record, I find not only were the allegation of fraud and misrepresentation baseless and misconceived but as a matter of fact, the respondent led no scintilla of evidence in proof of them. Indeed, Exhibit 4 [profile of the allied companies] the respondent themselves tendered in evidence clearly showed that those allied companies were established in November 2016, long before the parties brought Exhibit A into existence in or about May 2017. Per contra, the respondent’s assertion that those entities were set contemporaneously within the time the agreement between the parties came into being and that those entities were set up purposely to rip off the respondent were clearly untrue and a wicked assertion. The respondent also led no evidence to prove that respondent expressly requested to meet appellant’s agents to examine the extent of his market reach but he woefully failed to disclose the agents and their identities. It is also obvious that the finding of fact by the lower court that the appellant never disclosed his related entities to the respondent bank is unsupportable. Evidence abounds on record to show and the respondent’s own representative/witness so admitted under cross-examination that before the respondent entered into the agreement with the appellant, the bank made due diligence on the appellant. The respondent was therefore deemed to be aware of the existence of those allied entities before setting out to sign the agreement with the appellant. It would have been superfluous, so to speak, for the appellant to have disclosed his relationship with those allied entities to the respondent when they were already aware of that fact. In any event, the agreement, Exhibit A never required the appellant to make any such disclosure. Next, the respondents were unable to prove that when the appellant purchased e-cash from the respondent he illegitimately offloaded same to the allied entities and the entities offloaded same to Ecobank, a competitor bank, for cash to create false turnover. Enough evidence was led to show that those allied entities were duly registered MTN merchants with MTN wallet. The material evidence the appellant offered that KG Cash and KS Glob were established to expand the appellant’s distribution coverage in the Western and Eastern Regions of Ghana was never denied nor rebutted in any way. Significantly, the lower court in its judgment found and held that no fraud was proved against the appellant. Regardless, it went ahead to rule at page 16 of its judgment (p.345 [roa]) as follows: “It is true as plaintiff contended that some of the related entities were created to further its reach in the Eastern and Western Regions and that after sales some of the places had no Zenith Bank branches and that accounts for the offloading of the e-cash to ADB, GCB Bank and UMB. That seems to be a good explanation; however from those banks one would have thought that the next opportunity would have been for transaction to be effected directly to Zenith Bank. But no, they were all offloaded to Ecobank before they eventually land at Zenith as seen in Ex ‘3’. I think this technical area shows the modus operandi and how smart businessmen could easily toy with technology to beat the system to make more money by not playing by the rules.” If no fraud was proved against the appellant as the lower court held, this court is unable to appreciate and agree with the holding of the lower court that the appellant never played to the rules, thereby making his claim before the trial court unsustainable and was dismissed in the final analysis. If this court agrees with the lower court it was satisfied that the so-called modus operandi of the appellant was not unlawful and did not sin against the Bank of Ghana policies and guidelines as well as industry practice, it may not be far- fetched to say that what the appellant did was a kind of a tax avoidance and not tax evasion. Nevertheless, the learned trial judge trying to justify the unsustainability of the appellant’s claim, held: “I agree that the agreement being Ex “A” was not an exclusive agreement that precluded plaintiff from dealing with other competitor banks in the market. However, the real issue as the role employed by plaintiff with the sales not to customers but related entities which ends up with Ecobank and then a claim is eventually made on the defendant. And it is from that angle that the argument should be confined but not expanded to embrace one of exclusivity of the contract.” See: p 348 [roa] Instead of the lower court adopting the ordinary meaning approach to construing the agreement Exhibit A to ascertain the intendment of the parties insofar as the respective roles each party was to play in implementing the provisions of the agreement was concerned, it rather adopted the purposive approach. To guide it in resolving the issue, the lower court then set out the following perimeters: 1. The nature and purpose of the contract. 2. The circumstances under which the contract between the parties was concluded. 3. The customs and usages within the industry that the contract related to. 4. The conduct of the parties subsequent to the conclusion of the contract. 5. The necessity for demonstration of good faith and fair dealing by the parties in the performance of the contract. In the light of that approach, the trial court concluded that the appellant was engaged in round tripping activities. According to the lower court, it found as disproportionate, huge volumes of sales the appellant made to related entities to KG Cash, KB Regma and KS Glob with two (2) of the companies belonging to the appellant and the other, his sister- in-law’s. Relying on Clause 3 of Exhibit A, the trial court decided that the appellant having not opened branches of his company ie Digital Cash Services (DCS) that entered into agreement with the respondent bank to provide the services of money transfer, cash withdrawals, cash deposit, bill payment to customers etc as stipulated in the agreement but rather chose to offload about 52 million cedis out of the 57 million cedis sales of e- cash in May alone to the 3 entities named supra, who in turn offloaded to Ecobank for a claim to be made on the respondent bank for a commission, the appellant failed to fulfil the very intendment of the agreement. The court reasoned: “With the related entities who took a chunk of the e-cash rather than sale to the customers and with the related entities hosting their bins with Ecobank, and the engagement of round tripping, I find that plain- tiff did not live up to his obligations under the agreement and the abrogation of the agreement with its subsequent refusal to pay the commission for June 2017 by the defendant was in exercise of its right.” See: p. 351 [roa] The lower court added that it was simplistic a view to take of the agreement if one was only to take the clauses of the agreement, Exhibit A one by one without having a comprehensive view of the agreement to interpret it as a whole. As a matter of fact, the law relating to interpretation of document is already overburdened with fine distinctions and it was therefore needless for the lower court to have embarked on another in the way it did. To begin with, it is trite learning that it is not the duty of a court to redraft an agreement for parties. Its duty is to respect and give effect to the agreement the parties had entered into and have it enforced. That is the pacta sunt servanda principle which in simple terms means an agreement must be kept. The court’s duty, therefore, is to construe the contract document to ascertain what the parties meant by bringing into existence of that agreement. And there is that Westminster principle that states: "given that a document or transaction is genuine, the court cannot go behind it to some supposed underlying substance", a principle established in Commissioners of Inland Revenue v His Grace the Duke of Westminster [1935] All E. R. 259. The general canon of interpretation is that in construing a document to ascertain the intention of the parties, the document ought to be read as a whole. The starting point must be the words and phrases the parties have chosen. It is commonly thought the purpose of interpreting a contract is to discover the actual intentions of the contracting parties. In emphasizing this rule in Pioneer Shipping Ltd v B. T. P Tioxide Ltd [1982] AC 724, Lord Diplock delivered himself an opinion as follows: “The object sought to be achieved in construing any contract is to ascertain what the mutual intentions of the parties were as to the legal obligations each assumed by the contractual words in which they sought to express them.” Furthermore, in I. R. C v Raphael [1935] AC 96 the House of Lords speaking through Lord Wright, spoke to similar effect. The Law Lord stated the law worth reproduction here as follows: “The words actually used must no doubt be construed with reference to the facts known to the parties and in contemplation of which the parties, must be deemed to have used them; such facts may be proved by extrinsic evidence or appear in recitals; again the meaning of the words used must be ascertained by considering the whole context of the document and so as to harmonize as far as possible all the parts, particularly words may appear to have been used in a technical or trade sense, or in a special meaning adopted by the parties as shown by the whole document.” There is that unbroken chain of respected judicial authorities in our case law establishing the time-honoured principle that a document should be given its ordinary meaning where the terms contained therein are unambiguous. The Supreme Court, for eg., in the case of P. Y Atta & Sons Ltd v Kingsman Ent. [2007-2008] SCGLR 947 speaking through Brobbey JSC reiterated: “The general rule is that a document should be given its ordinary meaning if the terms therein are clear and unambiguous……….. In such a situation, the rules of interpretation mandate that the document should be interpreted in a view that would cause the intention of the parties to prevail.” This statement of the law has enjoyed sustained application till date. The general principle that do emerge from these cases for our guidance, therefore, is that unless it was established that the agreement or document, the subject matter of interpretation was awry, ambiguous and or technical in nature, it must be given an ordinary meaning. Guided by these principles it is worth repeating that the case did not justify an invitation of any purposive approach. Significantly, in our present case we have both the agreement the parties entered into Exhibit A, as well as the regulations of the Bank of Ghana, the regulator to guide the court in construing the intendment of the parties when they set out to bring into existence the agreement. Upon a careful analytical examination of the evidence in relation to the agreement and the Bank of Ghana regulations it is clear that both documents are unambiguous in nature. Therefore, it was needless for the lower court to have resorted to any purposive approach to construe the agreement when the document was not either awry in any way or was technical in nature. It cannot be overemphasized that the legal relationship between the parties was governed principally by Exhibit A and to a large extent, the Bank of Ghana Regulations and Policy Guidelines received in evidence as Exhibits H and G respectively. Exhibit A clearly spelt out the obligations of the parties to the agreement under the headings: “Obligations of Agent” and “Obligations of Zenith”. Under clause 3 of Exhibit A the appellant was under contractual obligation to provide mobile money products to customers and to ensure that his company branches provide mobile money products to customers. The respondent’s witness offered evidence to the effect that “customer” was used in generic term to refer to partner banks, super merchants and subscribers. It is common ground that all these categories of persons are described on the mobile money platform as subscribers and are permitted to participate in the product provided one has a wallet uniquely issued by the provider, MTN in this case. There is no evidence led before the trial court the appellant never dealt with customers of MTN. It does appear that the respondent’s suspicion was only that the appellant sold huge quantum of e-cash to his allied entities but less to the other customers. That may appear to be the case but Exhibit A never prohibited the appellant from dealing with partner banks who are also MTN subscribers and or customers. The agreement, Exhibit A equally provided for the test for a declaration of a transaction being illegal or unacceptable by or to the respondent. The respondent had seriously touted that the appellant did not play to the rules of the game and was therefore in breach of the agreement. However, respondent never led evidence to show that it made such a declaration. It is worthy of production, the respondent’s witness answers to some critical questions under cross-examination for which he reacted as follows: “Q. I am suggesting to you that commercial banks like Ecobank purchase the e-cash from plaintiff in accordance with MTN practices and Bank of Ghana regulations. A. Yes my Lord but not consistent with the agreement entered into with the defendant.” See the evidence of DW1 on 13/01/2020. In an answer to another question under cross-examination the same day the witness reacted: “Q. Plaintiff being a merchant and or a super merchant was at liberty to sell the e-cash purchased to other merchants, super merchants, subscribers and or customers, also to advance the objective of financial inclusion. A. My Lord, under the terms of the agreement the plaintiff entered into, he was not at liberty to engage other competitors of its principal agent, which is Zenith bank.” Although the witness had fiercely touted that the appellant’s engagement with the respondent flouted the terms and conditions of the agreement, he was unable to say with any degree of certainty which terms of the agreement the appellant sinned against. From the available evidence, I do find and hold that the respondent was unable to prove satisfactorily which terms or conditions the appellant breached. I equally hold that the respondent was unable to discharge that burden that the appellant violated any guidelines and policies the regulator, the Bank of Ghana had put in place governing the banking industry and e-cash and or mobile money business/transactions in particular. That leads me to addressing the issue of round tripping. According to Wikipedia, Round-tripping, also known as round-trip transactions or "Lazy Susans", is defined by The Wall Street Journal as a form of barter that involves a company selling "an unused asset to another company, while at the same time agreeing to buy back the same or similar assets at about the same price." Accordingly, swapping assets on a round-trip produces no net economic substance, but may be fraudulently reported as a series of productive sales and beneficial purchases on the books of the companies involved. The companies appear to be growing and very busy, but the round- tripping business does not generate profits. It is said in international scenarios, round-tripping is a method of structuring to evade taxes and to launder money. What is crucial to a determination of our present suit is whether the appellant indeed was engaged in any round-tripping. Now, applying the concept stated supra to the facts of our present case, I hold the respectful view that the lower court gravely fell in error to have held that the appellant was engaged in round tripping. The respondent led no evidence or sufficient evidence for that matter to show that the appellant either personally or his allied entities ever returned to the respondent e-cash purchased. In round tripping, there must be clear evidence on record to show that though the companies involved appeared to be growing and very busy, the round-tripping business did not generate profits, in this case either to the appellant or the respondent. On the contrary, the evidence showed that the appellant earned a commission for May 2017 at the commencement of the agreement. It is equally material to point out that the respondent benefitted from the sales and the appellant’s engagements. In the month of May, 2020 the appellant made a total sale of Ghc45,100,000.00 out of which he earned from the respondent his commission of Ghc124,025.00 being 0.275% of the total sale agreed upon and in accordance with Exhibit A. The respondent kept the rest of the sale/money for its benefit. Put differently, the business transactions appellant did with the respondent generated profits for the respondent whilst the appellant earned his commission. So where lies in the round tripping? To all intents and purpose, what triggered this otherwise avoidable dispute is that the management of the respondent in July 2017 contrary to the tenets of the agreement, Exhibit A unilaterally placed a cap on the monthly commission of 0.1% not exceeding Ghc20,000.00 per month which offer the appellant declined. Meantime evidence abounds that in June 2017 the appellant’s company, Digital Cash Service dealt with the same retailers as in the preceding month ie May 2017; had purchased from the respondent the total e-cash of Ghc32,030,000.00 and by that arrangement under the agreement, was entitled to Ghc88,082.50 as commission. The question the reasonable man would ask is: if indeed the appellant was engaged in round tripping why didn’t respondent abrogate the contract altogether but decided to place a cap on the monthly commission? The material evidence that the management of the respondent unilaterally decided to place a cap on the appellant’s monthly commission of 0.1% not exceeding Ghc20,000.00 per month which offer the appellant declined was neither denied nor rebutted by the respondent. And the law is quite settled that where a party has made an averment and it was never denied, no issue was joined and no evidence needed be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon it, he needed not call further evidence of that fact. See: Fori v Ayirebi [1966] GLR 627 SC and Hammond v Amuah [1991] 1 GLR 89. At the risk of sounding repetitive, none of the appellant’s businesses/ companies ever sold any portion of the product to the respondent. Thus, the respondent’s contention that the appellant sold the product to his allied entitles which also resold the e-cash to the respondent was false and an afterthought. From the available evidence, I find that the defendant’s witness variously admitted in his evidence on 24/01/2020 that the appellant sold all e-cash purchased from the respondent without returning any portion to the respondent. I do therefore hold that the appellant had the capacity and did discharge his legal obligations under the agreement, Exhibit A creditably contrary to respondent’s assertion. In the light of the above, I do endorse the submissions of learned Counsel for the appellant that the learned trial judge erred on the facts and the law to have held that the appellant never legitimately discharged his contractual obligation under the agreement. From the available evidence led on record, I do also hold the lower court put a wrong interpretation on Exhibit 3 thereby occasioning a gross miscarriage of justice to the appellant. Exhibits 2 and 3 set the stage for the respondent to allege that the appellant was engaged in round tripping. I have sufficiently addressed the allegation of round tripping and do intend to rehash it. Suffice to say that Exhibits 2 and 3 the respondent tendered in evidence even confirmed that the e-cash purchased from the respondent was sold to various customers. The evidence shows the appellant sold all the e-cash to MTN customers across the country including Ecobank which bank the evidence established, was also an MTN customer. Admittedly, Ecobank is a competitor bank. However, the respondent never led any evidence to show that Ecobank ever made any demand on the respondent bank in connection with the e-cash business the appellant did with it. Furthermore, the evidence by the appellant that he had done digital cash services agreement under the mobile money agency agreement with other banks, Republic Bank, uniBank and Ecobank was never denied or rebutted. I do hold that the transactions with those banks as well as Zenith bank did not prohibit any agent of merchant selling to the bank. In any event, the respondent’s witness admitted those transactions never offended the guidelines and policies of Bank of Ghana. In this respect, I prefer the submissions of learned Counsel for the appellant that the lower court misconstrued Exhibit 3 as a demand notice from Ecobank, to the submissions of learned Counsel for the respondent supporting the finding of the lower court that Exhibit 3 was a confirmation of the demand made on the respondent by Ecobank. It is worth repeating that there was no evidence led on record to show that Ecobank made a demand on the respondent bank and for which money was paid directly to Ecobank for its benefit. In the final analysis, it is my respectful view that the findings of the lower court so complained of by the appellant in respect of his grounds ii), iii), iv) & v) of appeal, are unsupportable and this court shall exercise its powers to upset those findings. See: Koglex Ltd (No.2) v Field [2000] SCGLR 175. Consequently, Grounds (ii), (iii), (iv) and (v) of appeal are allowed. Ground (a) – The judgment is against the weight of evidence. The appellant per his 1st ground of appeal claims that the judgment of the lower court is against the weight of evidence. That being the case, the appellant carries the burden to clearly demonstrate that there were lapses in the evidence led on record and which if applied in his favour, ought to have titled the scale of justice in his favour or that certain pieces of evidence were wrongly applied against him. Simply put, the appellant carries the burden to demonstrate that the judgment was wrong either in law or fact or both. See: Tuakwa v Bosom [2001-2002] SCGLR 61. The omnibus ground of appeal that the judgment is against the weight of evidence throws up the entire case for consideration and determination by the appellate court. The principle was reiterated in Owusu-Domena v Amoah [2015-2016] SCGLR 790 in which case the apex court stated that the sole ground of appeal that the 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 court ruled: “The decision of Tuakwa v Bosom has erroneously been cited as laying down the law that when an appeal is based on the ground that the judgment is against the weight of evidence then, only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law.” The Supreme Court in Djin v Musah Baako [2007-2008] SCGLR 686 propounded the law that: “Where an appellant complains that a judgment is against the weight of evidence he is implying that there were certain pieces of evidence on the record which if applied could have changed the decision in his favour, or that there are certain pieces of evidence that had been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.” The vexed question: Did the learned trial judge in the instant appeal fail to draw inferences from the established facts? Were his findings of facts unsupportable as the appellant has strenuously canvassed or is it demonstrable that the judgment is fraught with lapses for which reason it may be liable to be set aside? Error of law implies a mistake. To succeed, the appellant must show that there was a mistake in the judgment that makes it erroneous. Upon critical examination of the evidence adduced in the case and as recounted elsewhere in this judgment, except upholding the lower court’s findings that no fraud was established against the appellant, I do entirely disagree with the findings so made. Upon a careful study of the records of appeal before this court, the submissions filed by both Counsel and the finding of the lower court that no fraud was proved that cannot be faulted, I hold the other findings of the lower court are unsupportable. Put side by side with the appellant’s story, the appellant’s story sounds more probable and I therefore find that not only did he establish claim clearly but that the arguments of respondent was devoid of any merit. There is no doubt in my mind and I do find that the appellant proved his case on the preponderance of probabilities and was therefore entitled to judgment. I think I have assigned sufficient reasons to dispose of this appeal in favour of the appellant. The appeal succeeds in its entirety. In the result, the judgment of the lower court must suffer appellate court’s intervention. Accordingly, I allow the appeal and hereby set aside the judgment of the lower court delivered 28th May 2020 and enter judgment for the appellant for the reliefs endorsed on the writ of summons except relief (iii). The disallowance is on the account that the appellant per relief (ii), is also claiming interest on the principal sum claimed. Having regard to the evidence on record, I hold the respectful view that the termination of the contract by the respondent unlawful and unjustified. Consequently, the appellant was entitled to general damages for which I make an award of Ghc10,000.00. Appellant’s costs assessed at Ghc10,000.00. SGD. P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD. HENRY A. KWOFIE (JUSTICE OF APPEAL) I agree I also agree COUNSEL SGD. RICHARD ADJEI-FRIMPONG (JUSTICE OF APPEAL) NANA AMA AMPONSAH FOR THE PLAINTIFF/APPELLANT AWURAMA D. DARKWAH WITH HER RITA M. ANDOH FOR DEFENDANT/RESPONDENT 25