|
Banking
- Account - Withdrawal of Monies
- whether
or not the plaintiff did make
the transfers into the account -
whether or not the plaintiff
did withdraw the monies lodged
in the account as claimed by the
defendant - whether Plaintiff
has proved entitlement to
damages for emotional distress
HEAD NOTES
The
plaintiff/respondent/respondent,
herein the plaintiff, opened an
account with the defendant/
appellant/ appellant, herein the
defendant and therefore became
its customer. The main sources
of feeding the account were
occasional inward transfers in
foreign currencies that the
plaintiff made into the account
from Germany, where he was
resident. The problem that
brought the parties to court
arose from irreconcilable
differences between them in
respect of bank reconciliation
in respect of the account. The
defendant had closed down the
account on the ground that
virtually the whole amount
therein had been withdrawn by
the plaintiff, leaving very
little to keep the account
running. The plaintiff seriously
challenged this saying that
apart from one withdrawal of
1000 Deutsche marks he made, he
did not make any other
withdrawal. The parties adopted
an entrenched position on this,
thereby compelling the plaintiff
to resort to a court action at
the High Court, Court, where he
claimed these reliefs: ) The sum
of thirteen thousand Deutsche
marks. The sum of nine hundred
United States dollars. Accruing
interest on the amounts from
1994 until date of judgment.
Damages for emotional distress.
The plaintiff succeeded at both
the trial High Court and the
Court of Appeal
HELD :-
In the face of these pieces of
evidence, it was reasonable to
accept the plaintiff’s
presentation on a balance of
probabilities. The concurrent
findings by the courts below are
justified and are hereby
affirmed. These grounds of
appeal are accordingly
dismissed. if you wrongfully
keep a person out of his money,
you are responsible for any
consequential loss. Interest at
the ruling bank rate, applying
the euro interest rate in
respect of the refund in euro
and applying the US dollar rate
of interest on the refund in
dollars. The interest should be
calculated from December 1996,
which the trial court found was
the date the plaintiff made a
demand for his money up to the
date of final payment.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal
of CI 19 of 1997, as amended.
Rule 8(8)
CASES REFERRED TO IN JUDGMENT
Ankumah v. City Investment Co.
Ltd. (2007-2008) SCGLR 1064.
In re Ashalley Botwe Lands;
Adjetey Agbosu & ors v. Kotey &
ors (2003-2004) SCGLR 420
Hadmor Productions v. Hamilton
(1982) 1 All E. R. 1042 H. L.
Davies v. Powell Duffryn
Associated Collieries Ltd (1942)
1 All ER 657
Johnson v. Gore Wood & Co (a
firm) (2001) 1 All ER 481
Jarvis v. Swans Tours Ltd (1973)
1 All ER 71.
Dam v. Addo (1962) 2 GLR 200 SC.
Perestrello v. United Paint Co
Ltd (1969) 3 All ER 479, (1969)
1 WLR 570
K. Agyarbeng & 62 others v. SG/SSB
(now Societe Generale) Suit No.
J4/11/2015, unreported
Oppong Kofi v. Attibrukusu
(2011) 1 SCGLR 176; Tuakwa v.
Bosom (2001-2002) SCGLR 61.
Djin v. Musa (2007-2008) SCGLR
687.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:-
COUNSEL:
CHARLES HAYIBOR FOR THE
DEFENDANT/APPELLANT/APPELLANT
T. FORSON FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
BENIN, JSC:-
The
plaintiff/respondent/respondent,
herein the plaintiff, opened an
account with the defendant/
appellant/ appellant, herein the
defendant and therefore became
its customer. The main sources
of feeding the account were
occasional inward transfers in
foreign currencies that the
plaintiff made into the account
from Germany, where he was
resident. The problem that
brought the parties to court
arose from irreconcilable
differences between them in
respect of bank reconciliation
in respect of the account. The
defendant had closed down the
account on the ground that
virtually the whole amount
therein had been withdrawn by
the plaintiff, leaving very
little to keep the account
running. The plaintiff seriously
challenged this saying that
apart from one withdrawal of
1000 Deutsche marks he made, he
did not make any other
withdrawal. The parties adopted
an entrenched position on this,
thereby compelling the plaintiff
to resort to a court action at
the High Court, where he claimed
these reliefs:
(a) The sum of thirteen thousand
Deutsche marks.
(b) The sum of nine hundred
United States dollars.
(c) Accruing interest on the
amounts from 1994 until date of
judgment.
(d) Damages for emotional
distress.
The plaintiff succeeded at both
the trial High Court and the
Court of Appeal. This is a
second appeal by the defendant.
The case was essentially based
on matters of fact, whether or
not the plaintiff did make the
transfers into the account, and
whether or not the plaintiff did
withdraw the monies lodged in
the account as claimed by the
defendant. As was rightly
observed by the trial High Court
judge in her judgment of 21st
March 2012, this was a matter
which the bank’s records should
ordinarily have resolved, given
the track records of banks in
keeping financial records. But
this is one case where the two
courts below were unanimous in
finding that the customer, the
plaintiff herein, had rather
kept proper records of his
transactions with the bank,
defendant herein. The trial
court upheld the plaintiff’s
claim after a hearing. It
concluded thus: “The defendant
is ordered to reverse all the
unsupported entries on
plaintiff’s accounts, credit the
plaintiff’s account with the
sums of 10,000 DM on 28th March
1990, the Deutsche Mark
equivalent of 900$ on 19th March
1991, 2000DM on 2nd September
1992, 1000DM on 11th February
1994, and 1000DM on 11th April
1994 along with accruing
interest. Defendant is to debit
this reconstructed account with
1000DM at the end of 1994.” The
court allowed the defendant to
deduct ledger fees as the
submission thereon was
unchallenged.
On the claim for damages for
emotional distress, the trial
judge granted it in these words:
“Plaintiff has proved
entitlement to damages for
emotional distress. According to
his testimony, in order to
resolve this matter, he came to
Ghana, engaged lawyers, and
communicated with Barclays
International. He has also lost
the use of his savings since he
rudely found out the loss of his
accounts in 2006- six years ago.
As damages, different from
whatever balance would accrue to
his account following the
ordered reconstruction,
plaintiff is awarded the euro
equivalent of 13,000 DM and 900
US dollars as money whose use
the plaintiff should have
reasonably anticipated will be
lost to the plaintiff when it
failed to properly account to
the plaintiff after he started
to make complaints about the
loss of his savings.”
In its judgment delivered on
24th July 2014, the Court of
Appeal dismissed the defendant’s
appeal. The court below agreed
with the trial court on its
findings of fact on material
issues concerning the account.
On the monies claimed by the
plaintiff, the court upheld the
trial court’s decision and
stated that he was entitled to
recover 13,000DM and $900
respectively, with interest. On
the status of the Deutsche Mark
which had then ceased to be
legal tender, the court took
note of the conversion rate of
the Deutsche Mark to the Euro,
and ordered the exchange rate to
be applied in carrying out the
trial court’s orders.
On the claim for damages for
emotional distress, the Court
below said it could not find
from the plaintiff’s statement
of claim any averments on which
the claim was founded. And also,
it did not find any evidence on
the record that could establish
the claim. The court therefore
rejected the award of damages
for emotional distress. However,
the court below awarded general
damages of GH₵10,000. 00. The
defendant has appealed against
the judgment of the Court of
Appeal to this court on these
grounds:
a. That, the judgment is against
the weight of the evidence
adduced.
b. That, the justices of the
Court of Appeal erred in law
when they held that there is a
high probability of the
transfers as disclosed on
exhibits C, D and E having been
received by the defendant very
much against the evidence led at
the trial.
c. That, the Court of Appeal
erred in law when it found for a
fact that the trial court’s
decision that the plaintiff has
proved and is entitled to
damages for emotional distress
was not borne by the evidence on
record and yet proceeded to
award GH₵10,000.00 as general
damages to plaintiff when
plaintiff never pleaded nor
proved same.
d. That, the Court of Appeal
misdirected itself in law when
it found that even though it
acknowledged that at the date of
the judgment of the trial court,
the Deutsche Mark had ceased to
be legal tender, the court
nevertheless held that any
adverse consequences affecting
the account in issue following
the demise of the Deutsche Mark,
should not be visited on the
plaintiff.
e. That, the Court of Appeal
further misdirected itself in
law when it made the award of GH₵10,000.00
as general damages to the
respondent, in clear breach of
Rule 8(8) of CI 19 of 1997, as
amended.
f. That, the Court of Appeal
erred in law when it substituted
‘proprio motu’ a case for the
respondent in the award of GH₵10,000.00
as general damages.
Counsel for the defendant argued
grounds c, e and f together. The
thrust of his arguments may be
summed up as follows. First,
since the Court of Appeal had
rejected the plaintiff’s claim
for damages on ground that it
was not pleaded and there was no
evidence in support, there was
no basis for the award of
general damages. This amounted
to substituting the plaintiff’s
case for damages for emotional
distress for one of general
damages. Secondly, counsel was
of the view that the parties
ought to have been given the
opportunity to address the court
on the question of general
damages when it decided to rest
its decision on this. The course
taken by the court was thus a
clear violation of the
provisions of Rule 8(8) of C.
I. 19. On this question, counsel
stated that “the import and
indeed the effect of rule 8(8)
or 8(9) of the Court of Appeal
Rules, 1997, C. I. 19, was
considered in the case of
Ankumah v. City Investment Co.
Ltd. (2007-2008) SCGLR 1064.
In its judgment, the Supreme
Court (per Adinyira JSC) was
emphatic that the
plaintiff/appellant therein
ought to have been given the
opportunity to be heard on the
procedural issues raised in the
suit before overruling a
legitimate objection to the
procedural issues raised by a
party who had not cross-appealed
on any of the grounds of appeal
filed by the plaintiff.” Counsel
also cited the case of In re
Ashalley Botwe Lands; Adjetey
Agbosu & ors v. Kotey & ors
(2003-2004) SCGLR 420, at
466-467, per Brobbey JSC, also
on the import of Rule 8(8) of C.
I. 19.
Counsel continued his argument
by inviting the court to apply
the ratio in the Ankumah case
“to hold that the Court of
Appeal was in error on the said
award made in substitution and
to set aside the said award of
damages in its entirety.”
In further elucidation of the
above argument, counsel made
reference to the English case of
Hadmor Productions v.
Hamilton (1982) 1 All E. R. 1042
H. L. at 1056, per Diplock
L.J. overturning a decision by
the English Court of Appeal
which had relied on a speech
recorded in the Hansard without
giving opportunity to the
parties to be heard. Counsel
said that decision was on all
fours with the instant case.
As a corollary to this point,
counsel made this interesting
submission: “If the Court of
Appeal had given the parties the
opportunity to contest the
matter from their different
perspectives, in all
probability, their Lordships in
the Court of Appeal would not
have made the aforesaid award of
general damages..........” With
regard to this last submission,
it should be stated that
examination of Rule 8(8) of C.
I. 19 should not be based on the
merits of the case or soundness
of the outcome; it is based
entirely on whether the rule was
observed or otherwise.
For his part, counsel for the
plaintiff strenuously defended
the decision by the Court of
Appeal to award general damages
to the plaintiff. He thought
counsel for the defendant was
confusing general damages with
special damages. He said this in
reference to some questions
posed by counsel for the
defendant especially with regard
to the cost incurred by
plaintiff on air fares and other
costs. Before proceeding any
further, it is obvious the
arguments made by counsel for
the defendant was not
appreciated or fully understood
by counsel for the plaintiff.
What counsel for the defendant
was saying was that the Court of
Appeal itself had concluded that
there was no evidence to
establish the claim for damages
for emotional distress. So on
what evidence did it award
general damages? That led him to
pose those questions on air
fares etc, just to buttress the
fact that there was no iota of
evidence on which the award
might be justified. Counsel was
not saying the plaintiff was
obliged to prove those factors.
Thus all the copious references
to distinction between special
and general damages were a red
herring.
Interestingly, counsel for the
plaintiff cited authorities
wherein award for mental
distress arising from breach of
contract had been made. He
preceded this point with
reference to the case of
Davies v. Powell Duffryn
Associated Collieries Ltd
(1942) 1 All ER 657 where
the conditions under which an
appellate court may interfere
with an award of damages were
outlined. These conditions are
that the court acted on a wrong
principle of law, or has
misapprehended the facts, or has
made a wholly erroneous estimate
of the damage suffered. Counsel
then cited the case of
Johnson v. Gore Wood & Co (a
firm) (2001) 1 All ER 481 at
516, where it was held that
damages are recoverable for
physical inconvenience and
discomfort caused by a breach of
contract and also for mental
suffering directly related to
that inconvenience and
discomfort. In the same vein, he
cited the case of Jarvis v.
Swans Tours Ltd (1973) 1 All ER
71.
Having regard to the references
made, one would think they
provided a solid foundation for
a cross appeal against the Court
of Appeal’s decision setting
aside the award of damages for
emotional distress granted by
the High Court. But there is no
cross appeal. What followed
these references is not quite
comprehensible and appears to be
an anti-climax. To quote
counsel’s words: “The Court of
Appea however believed and held
that the result of emotional
distress was not foreseeable and
hence substituted the award of
damages for emotional distress
with general damages which in
any event was also due.”
Counsel did not respond to the
arguments made in reference to
Rule 8(8) of C. I. 19. The
closest he came to addressing
this question is the last
statement he made under these
grounds of appeal that: “In
relation to whether the Court of
Appeal can consider only the
grounds argued before it, it is
trite that an appeal is by way
of rehearing and the judges on
appeal have the jurisdiction to
consider all matters before it
on the record including matters
that were not specifically
stated as grounds of the
appeal.”
It is noted that a claim for
damages is one of the remedies
available to a claimant in an
action founded on a breach of
contract. The claimant may
decide to claim damages in
addition to any other remedy
available to him following a
breach. Thus he should make a
claim for damages if the court
is to consider it since damages
is not a rule of evidence. It is
also to be noted that there are
diverse heads of damages
available to a claimant, like
pain and suffering in tort
matters, for trespass in land
claims etc. Therefore the
claimant is required to make a
claim for damages. He may decide
to base the claim on a specific
head for which he is seeking
damages, though this is not an
invariable rule. But if he
decides to base his action on a
particular head of claim, he
must produce the evidence to
support it. For a defendant must
not be taken by surprise and so
must have the opportunity to
meet the claimant’s case. If the
claimant fails to produce
evidence to prove the case, he
must fail. It is not open to the
court to award damages based on
a different head not asked for.
That will be substituting the
claimant’s case, contrary to the
decision in Dam v. Addo
(1962) 2 GLR 200 SC.
The Court of Appeal found that
there was no pleading in respect
of the damages for emotional
distress sought for by the
plaintiff. It also found that no
evidence was adduced in support.
For these reasons it rejected
that claim. That should have
ended this matter. Contrary to
the decision in Dam v. Addo,
supra, which is binding on the
court below, it proceeded to
award general damages when it
was not claimed as a remedy.
General damages do not
necessarily and automatically
flow from a breach of contract,
as to lead to an award by the
court when it is not sought as a
remedy. Thus in the case of
Perestrello v. United Paint Co
Ltd (1969) 3 All ER 479,
(1969) 1 WLR 570 at 579 Lord
Donovan referred to the need to
put a defendant on notice of
“damage of a kind which is not
the necessary and immediate
consequence of the wrongful
act.”
Besides, the question of general
damages was not raised by the
plaintiff either at the trial
court or in the court below as
to give the opportunity to the
defendant to address it.
Consequently, when the Court of
Appeal decided to base its
decision on it, it was required
by rule 8(8) of C. I. 19 to
invite the parties to address
it. The said Rule reads:
“Notwithstanding sub-rules (4)
to (7) of this Rule, the Court
in deciding the appeal shall not
be confined to the grounds set
out by the appellant, but the
Court shall not rest its
decision on any ground not set
out by the appellant unless the
respondent has had sufficient
opportunity of contesting the
case on that ground.”
The authorities that were cited
by Counsel for the defendant and
have been referred to above are
apt on this point. The ‘audi
alteram partem’ principle and
the rules of natural justice
underpin this particular rule,
thereby assuming the status of a
substantive law. Without
substituting general damages for
damages for emotional distress,
the court below could not have
awarded the damages as it did.
Therefore it ought to have
complied strictly with rule 8(8)
of C. I. 19, which is a
mandatory requirement. Failure
to observe it renders the
court’s decision unsupportable
and unjustifiable.
Moreover, the court below had
found that there was no evidence
to support the claim for damages
founded on emotional distress.
Yet it accepted the same scanty
evidence as supporting an award
of general damages. The standard
of proof in civil matters is for
the person who assumes the
burden of producing evidence to
lead such evidence as to enable
the trier of fact to determine
that he has established his case
on a preponderance of
probabilities. The court below
was thus under a duty to
consider the totality of the
evidence in arriving at this
conclusion. It was not
sufficient to base an award of
damages on the bare fact that
the defendant was found to be in
breach of contract when
ordinarily the refund with
interest should be just
compensation. What then was the
basis of the award in the
absence of any evidence beyond
the breach of contract?
In the case of J. K.
Agyarbeng & 62 others v. SG/SSB
(now Societe Generale) Suit
No. J4/11/2015, unreported
judgment of this court dated 11
June 2015, the plaintiff
claimed, inter Alia, damages for
wrongful termination of
appointment. The trial High
Court granted the relief for
damages for wrongful termination
of employment. On appeal, the
Court of Appeal reversed the
trial court’s finding of
wrongful termination. But the
Court of Appeal maintained the
award of damages on account of a
ground which was not sought as a
relief and by the pleadings. In
setting aside that award, this
court held that there was no
claim or pleading setting out
the foundation for the award;
hence there was no basis for it.
For these reasons, these grounds
of appeal succeed.
The next grounds of appeal
argued by counsel for the
defendant were grounds a and b
together. At the Court of
Appeal, the defendant had urged
on it the need to re-appraise
the entire evidence on record
before arriving at a decision.
At any rate the court was bound
to do that since the omnibus
ground was canvassed in the
Appeal. In particular the
defendant’s position was that it
did not receive the transfers
evidenced by exhibits A, B, C, D
and E. So the court was bound to
consider the burden of
persuasion that lay with the
plaintiff. The plaintiff is not
satisfied with the reasoning by
the court below in accepting the
probability that the transfers
were made after it had labelled
the defendant’s exhibits 3 and 8
as lacking integrity. Exhibit 3
and 8 are ledger recordings
tendered by the defendant to
show their record of the
plaintiff’s accounts. The
defendant has urged this court
to take another look at these
exhibits 3 and 8, to decide
whether they lack integrity.
Counsel’s arguments find support
in a number of cases decided by
this court; see Oppong Kofi
v. Attibrukusu (2011) 1 SCGLR
176; Tuakwa v. Bosom (2001-2002)
SCGLR 61.
For his part, counsel for the
plaintiff submitted that the
onus is on the defendant to
satisfy this court that the two
lower courts were wrong in their
evaluation of the facts in
evidence. He cited in support
the case of Djin v. Musa
(2007-2008) SCGLR 687.
Counsel made reference to the
common finding of the two lower
courts that the plaintiff indeed
made the transfers into his
account. According to him, there
was abundant evidence that the
plaintiff did make the transfers
electronically by SWIFT,
contrary to the defendant’s
position that it was by post.
The burden therefore shifted on
to the defendant to disprove
this fact of the transfers. He
concluded on this note: “The
defendant has not shown this
court which pieces of evidence
the court should have considered
differently or should have
inured to his benefit. The
judgment follows the evidence as
presented, and same should be
preserved by this Honourable
court.”
In deciding whether or not a
plaintiff has succeeded in his
claim on a balance of
probabilities, the court must
have due regard to the case he
set up by his pleadings. The
plaintiff averred that he made
the transfers into his foreign
(Deutsche Mark) account with the
defendant, through his bankers
in Germany called Stadt
Sparkasse Rhein-Neckar Nord in
Mannheim, then West Germany,
between 1990 and 1994. The total
sum transferred was 14,000DM and
US$900. He made a withdrawal of
1000DM, thus leaving a balance
of 13,000DM and $900,
respectively. The defendant has
failed to pay him his money,
hence the reliefs endorsed on
the writ.
The defendant averred that the
plaintiff made a first-time
deposit of DM10,485 into the
account on 4th July 1990. That
since the account was in
Deutsche marks, it was
impossible to credit same with
dollars. Later on 28th June
1995, the plaintiff transferred
an amount of DM976 into his
account. They averred that the
plaintiff made the following
withdrawals from his account:
DM10,000 in or around December
1990, DM1000 in August 1995 and
DM200 in or around May 1995.
Thus according to the defendant,
the plaintiff made a total
deposit of DM11,661 as against a
total withdrawal of DM11,200,
between the period 1990 and
1995. By September 1995, the
credit balance on the account
stood at DM11.67 and since then
there has been no transaction on
the account. The defendant was
compelled to close the account
due to insufficiency of the
balance to take care of bank
charges.
By way of a reply, the plaintiff
denied having made any transfer
of the sum of DM10,485 as
pleaded by the defendant. On the
dollar transfer, the normal
practice, according to the
plaintiff, was for the bank to
convert it into Deutsche marks
and credit the account. He
denied having made any transfer
into the account in 1995.
This was the state of the
pleadings before the hearing
commenced.
In proof of his case that he
made several transfers into the
bank account, the plaintiff
tendered copies of documents
evidencing the transfers from
his bankers in Germany, in his
name to the defendant bank.
These documents are: exhibit A
dated 28 March 1990, for the sum
of DM10,000; exhibit B dated 19
March 1991 was for the sum of
$900; exhibit C dated 02
February 1992 was for the sum of
DM2,000; exhibit D dated 11
February 1994 was for the sum of
DM1,000; exhibit E dated 11
April 1994 was for the sum of
DM1,000. All these documents
were admitted in evidence
without objection. The
authenticity of these documents
was not put in doubt as the
German bank confirmed same by
exhibit F. He testified that he
made only one withdrawal of
DM1,000. These documents having
gone in without objection and
being authentic were entitled to
be given whatever weight the
trial court deemed appropriate
having regard to the evidence
proffered by the defendant.
The defendant put in evidence
two ledgers indicating its
transactions with the plaintiff.
These ledgers confirm the total
lodgments into and withdrawals
from the account as well as bank
charges of commissions, which
were also tendered without
objection.
The trial court was faced with
these competing stories. The
plaintiff needed only to satisfy
the court that indeed he had
made those transfers. And
clearly exhibits A through E
established that. Thus in the
absence of other credible
evidence to the contrary, the
court’s below would be justified
in accepting and relying on it.
At that point the burden of
persuasion shifted to the
defendant who now has to satisfy
the court that the entries in
their ledger books exhibits 3
and 8 represent the true state
of the plaintiff’s accounts with
them. The court’s below were not
satisfied the defendant had
succeeded in leading evidence
that would lead them to reject
the plaintiff’s version. There
was sufficient and credible
evidence adduced by the
plaintiff, supported by
documentary evidence to satisfy
the court. This court should not
disturb those findings.
In further support of the
findings made by the court’s
below, it is noted that the
exhibits tendered by the
plaintiff did not show any
transfer for the sums of
DM10,485 and DM976 respectively
into the account. It was the
defendant which said that. It is
equally noted that entries into
the defendant’s ledger books are
entered by officials of the
bank; the plaintiff has nothing
to do with it. So it is a
self-serving piece of evidence
generated internally which
proves nothing, without more. It
cannot be wholly accepted as
establishing the facts therein
stated. The defendant said the
transfers came in by post,
contrary to the plaintiff’s
position that they were effected
electronically by SWIFT. The
exhibits A through E clearly
confirm what the defendant said
that they were done by post, the
exhibits use the word “letter”
which confirms by post. The
communication by letter or post
makes it easier to keep the
records as evidence to support
even the various transfers
defendant claimed to have
received. Consequently, the
defendant could have produced
the documents evidencing the
inward transfers received from
the plaintiff’s bankers, which
differ materially from what the
plaintiff put in evidence. They
could have produced evidence of
the withdrawal slips the
plaintiff must have used, or
withdrawal advice he must have
authorized. The entries do not
even indicate the forwarding
institution or any other details
of the transfers. Only the
figures have been stated. The
defendant could have provided
evidence of bank statements
issued periodically to the
plaintiff during the period in
question, putting him on notice
as to the state of his accounts
and yet he did not complain. Or
as a bank the defendant could
have cross checked the
authenticity of exhibits A
through F with the foreign
originating bank. In other
words, the entries in exhibits 3
and 8 were capable of being
confirmed in one way or the
other, but no other evidence was
forthcoming, to confirm the
accuracy of the entries in
exhibits 3 and 8.
In the face of these pieces of
evidence, it was reasonable to
accept the plaintiff’s
presentation on a balance of
probabilities. The concurrent
findings by the courts below are
justified and are hereby
affirmed. These grounds of
appeal are accordingly
dismissed.
The last ground of appeal is
(d). This ground draws attention
to the fact that the Deutsche
Mark has ceased to be legal
tender and challenges the
authority or power by the High
Court in making the award in the
obsolete currency. The defendant
is saying that the Court of
Appeal did not address this
question which was a ground of
appeal and instead relied on a
press release to order the
conversion of the Deutsche marks
to Euro at a certain rate of
exchange. Counsel invites this
court “to make a definitive
pronouncement on this aspect of
the matter, in the hope that it
may serve as a yardstick with
which to address this and
similar issues in the future.”
We fail to understand the basis
for this argument. The trial
court acknowledged and indeed
took judicial notice of the fact
that the Deutsche Mark had
ceased to exist and same was
replaced or exchanged for the
Euros. Therefore it directed
that the conversion to Euros
should be reflected in
plaintiff’s account as from
December 1996 when he made a
demand for his money. The trial
court could have expressed this
in much simpler and direct
language than it did, but this
does not detract from the fact
that the payment to the
plaintiff was to be effected in
Euros since the account was to
be credit in this currency as
from December 1996. A court’s
judgment must be read as one
composite document, and not
piecemeal. The Court of Appeal,
as we see it, was just bringing
much clarity to the matter by
fixing the conversion rates
based on rates applicable upon
adoption of the euro as the
common currency for the euro
zone countries, including
Germany. This is what the court
below said, speaking through
Aduama Osei, JA:
“..............it was as a
result of a failure on the part
of the Defendant that the
Plaintiff’s account had not been
duly credited. In my view, if in
this circumstance, any adverse
consequences affecting the
account in issue followed the
demise of the Deutsche Mark, the
Plaintiff should not be the
victim of those consequences. To
hold otherwise will amount to
granting the Defendant the
benefit of its wrongdoing. Upon
the coming into being of the
euro, rates of converting each
of the participating currencies
into euro were agreed and I
think this county can take
judicial notice of those rates.
The rate of conversion for the
Deutsche Mark was 1.95583 to
€1.00, and in my view, this rate
can be used to carry out the
orders made by the trial
court..........”
The Court of Appeal stated the
legal position correctly,
because if you wrongfully keep a
person out of his money, you are
responsible for any
consequential loss. Also the
court was entitled to take
judicial notice of the exchange
rates as put out in the public
domain. It was open to the
defendant to challenge it by
calling for fresh evidence, if
the rate used by the court was
not correct. There is no merit
in this ground of appeal and is
dismissed.
Consequently, the appeal
succeeds in respect of grounds
c, e and f, but fails in respect
of grounds a, b and d. We
accordingly set aside the award
of general damages by the court
below. We order the defendant to
pay the plaintiff the following:
1. the euro equivalent of DM
13,000 at the rate of 1,95583DM
to €1.00;
2. US$900.00;
3. Interest at the ruling bank
rate, applying the euro interest
rate in respect of the refund in
euro and applying the US dollar
rate of interest on the refund
in dollars. The interest should
be calculated from December
1996, which the trial court
found was the date the plaintiff
made a demand for his money up
to the date of final payment.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
CHARLES HAYIBOR FOR THE
DEFENDANT/APPELLANT/APPELLANT
T. FORSON FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
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