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This is not a
run off the mill case in our
civil jurisdiction. The
undisputed facts are that the
plaintiff held a current account
at the defendant's branch in
Kumasi. One Constantine Zeleku
worked as the accountant of the
plaintiff company during the
period 2004 to 2007. His duties
included writing the cheques of
the company which he presented
to the chief executive, Mr.
Italo for his signature. Then
Zeleku took these cheques away
and distributed them to the
creditors of the company in
whose name the cheques were
written. In horrifying
criminality; what Zeleku did was
that over the period of 4 years,
he would write certain cheques
in such a way that he would
leave significant space at both
the text and figure columns of
the cheque. He did this to
deliberately facilitate fraud by
altering the value of the
cheques. After Mr. Italo had
signed those cheques, Zeleku
would then insert both words and
figures which would
significantly multiply the value
of the cheque. For example, if
the original cheque was for
1,502,000 cedis, he would add to
the text column the word twenty,
thirty or forty; and in the
figure column, the letter 2, 3,
or four. So the original cheque
for 1,502,000 would become
21,502,000 or 31,502,000 or
41,502,000 cedis. By the end of
the four year period, Zeleku had
inflated cheques which the
plaintiff alleges amount to GH¢186,000.00.
It was not established if Zeleku
conducted this scam with the
active collaboration of others
or that they were passive
helpers. However, after adding
these extra values to these
cheques, the next step Zeleku
took in this scam was to have
most of the cheques endorsed —
either to him or to third
parties before the money as
withdrawn from the defendant
bank. It is the plaintiff's case
that it is an implied term of
the contractual relations
between the parties that the
defendant would exercise
reasonable skill and care in the
execution of the plaintiff's
orders, including how payments
.are made on cheques drawn on
the account, and that in breach
of this implied term, the
defendant negligently paid out
the cheques altered by Zeleku.
The particulars of negligence
were set out as i. Paying out
cheques which ordinarily should
not have been paid by the bank
taking into consideration the
writings on the face which were
jammed into each other and/or
had abnormal spacing ii. Paying
out cheques over the counter
endorsed with the name of the
drawee without demanding from
the drawee any form of
identification iii. The writing
on the cheques ordinarily should
have put the bank on suspicion
to either refuse payment or at
least inquire from the plaintiff
whether the cheques were genuine
and must be paid. This defendant
failed to do. The plaintiff
further argued that the act of
paying out materially altered
cheques offends against the
Bills of Exchange Act, 1961 Act
55 and the said cheques cannot
be debited against plaintiff's
account. The plaintiff is
therefore praying for an order
to compel the defendant to
reimburse the plaintiff with the
sum of 186,000.00 Gh cedis
debited against the account as a
result of the withdrawal on
these cheques with interest
thereon from 8th September 2008
to date of final payment, along
with damages and costs.
Defendant denies the allegations
and states that it carried out
its duties with adequate care
and skill. It outlined several
steps it took in conformity with
applying care and skill. The
first was notifying the
plaintiff's managing director of
all cash cheques which were in
excess of 3,000 GH cedis as part
of the general measures the bank
takes in its work It is their
case that the response of the
managing director was to direct
defendant's officials who called
him for verification ad
confirmation of the cheques to
the accountant - the same Zeleku
who perpetrated the fraud - and
they always obtained
confirmation from plaintiff's
accountant before paying out any
of the plaintiff's cheques.
Second, most of the cheques
withdrawn by Zeleku himself
after he had confirmed the
authenticity and genuiness of
the cheques. Thirdly, it
complied with standard banking
practices before paying any of
plaintiff's cheques. Fourthly,
that plaintiff had never
complained of any anomaly or
fraud before 2007, and that it
was plaintiff who was negligent
in not detecting over the period
that its cheques were being
forged. It was also the position
of the defendant that all of the
cheque books it issues to
customers after they open their
accounts have clear and express
instructions in the cheque books
as to how customers should
secure and write their cheques
Defendant contended that the
plaintiff did not comply with
its express instructions in the
cheque books which enabIed the
Accountant to alter the cheques
and fraudulently withdraw money
from plaintiff's accounts It
also averred that due to
plaintiff's designation as a
large customer, defendant's
officials called on plaintiff at
his factory on diverse dates to
discuss plaintiff's account and
on one of these occasions over
the three year period did
defendant complain about its
cheques being altered. Defendant
concluded its defence with the
position that it did not pay out
materially altered cheques, that
it acted with due care and
diligence before paying out
plaintiff's cheques and its
conduct did not offend against
Act 55 and that the loss had
occurred as a result of
plaintiff's own inefficient
internal management procedures
which did not detect the fraud
over a period of 3 years and not
as a result of defendant's
negligence or at all. The basic
facts of this case are not in
dispute, neither does either
party allege that the other was
involved in the fraud that led
to the loss. What is in dispute
is who was negligent and who
should bear the liability for
the loss caused by the fraud. In
Section 63 of the Bills of
Exchange Act, 1961 Act 55, the
law provides that 1. Where a
bill or acceptance is materially
altered without the assent of
the parties liable on the bill,
the bill is avoided except as
against a party who has
personally made, authorized, or
assented to the alteration, and
subsequent endorsers. 2. Where a
bill is materially altered, but
the alteration is not apparent,
and the bill is in the hands of
a holder in due course, the
holder may profit by the bill as
if it had not been altered, and
may enforce payment of it
according to its original tenor.
3. For the purposes of this
section, an alteration of the
date, the sum of money payable,
the time of payment, the place
of payment, and where a bill is
accepted generally, the addition
of a place of payment without
the acceptor's assent, are
material alterations. By Clause
63 (3) therefore, the change of
the sums payable constitutes a
material alteration of the
cheques in this dispute. 63(1)
categorically directs that such
cheques are avoided because the
alteration was done without the
assent of the plaintiff company
which is liable on the bills.
The only persons liable to pay
for these cheques are Zeleku,
because he is the one 'who
personally made, authorized and
assented to the alterations and
the subsequent endorsers of the
cheque, where payment on the
cheques ended up with persons
other than Zeleku. This is the
statutory legal position. The
plaintiff's action against the
defendant is premised on the
position that notwithstanding
this law that the person liable
on altered cheques is the
perpetrator of the alteration,
the defendant also owed an
implied duty of care to it in
the ambit of the contract
between banker and customer.
Within the context of Act 55,
this duty is implied from the
tenor of Section 58 which reads
58. Where a bill payable to
order or on demand is drawn on a
banker, and the banker on whom
it is drawn pays the bill in
good faith and in the ordinary
course of business, it is not
incumbent on the banker to show
that the endorsement of the
payee or a subsequent
endorsement was made by or order
the authority of the person
whose endorsement it purports to
be and the banker is deemed to
have paid the bill in due
course, although the endorsement
is forged or made without
authority' The law hedges the
protection given to bankers from
liability where a bill is forged
or made without authority with
two conditions. The banker must
have paid the bill in good faith
and must have done it in the
ordinary course of business.
Under Section 90 of Act 55,
acting in 'good faith' means
Where a thing is done honestly.
There is no allegation that the
defendant in this action was
dishonest in its payment of the
cheques, and this leaves the
point whether the defendant as
bankers acted in the 'ordinary
course of business'. Acting
negligently is never an act done
'in the ordinary course of
business' as established in a
long line of cases in both
contracts and tort. In the law
of torts, the law will always
imply a duty to act diligently
and with skill where a duty of
care exists as a result of
proximity between parties
coupled with forseeability of
damage if work is not carried
out diligently The law of
contract similarly implies a
duty of care as a necessary
incident to give business
efficacy and as an expression of
the uncontested Intention of
parties to any contract There is
no need to cite cases to
buttress this point made because
it is a cornerstone of
commercial law. This court thus
agrees with plaintiff that a
duty not to act negligently is
properly carried by the bank and
this duty is not waived by
Section 63 of Act 55. On the
contrary, it is built into the
legislation through Section 58.
The implied duties of a customer
of a bank and the bank have
taken shape over the years
through case law. I am indebted
to Paget's Law of Banking 13th
Edition 2007, LexisNexis
Butterworths by Mark Hapgood QC
for the clear discussion of the
general law relating to banking
and from which I have taken a
Lot of direction for my
assessment of the principles to
apply to my decision in this
case. The common law position,
even without the instruments
executed to establish, the
banker/customer relationship is
that 'the relationship of banker
to customer is one of contract'.
Please see Foley v. Hill 1848 2
HL Cas 28. Apart from the state
of general contract which is
basic to all transactions, other
special contracts arise as the
banker and customer enter into
specific transactions or banking
services. Whether a party to a
transaction should be liable for
negligence is always a matter of
law. To cite Street on Torts by
John Murphy 11th Edition Lexis
Nexis Butterworths 2003, at page
247 'The question of whether the
defendant has broken a duty of
care is one of Law, not of fact;
the standard required of the
defendant is that of the
reasonable person, a legal
construct; In order to determine
whether a person has been
negligent, :a court has to
identify the standards for
acting required of a person
operating in a particular
capacity and evaluate whether
the acts complained of as
negligent fall below the
standards for acting or are
properly within those standards,
Any acts executed below the
standards expected of persons
operating in that particular
fieId are properly evaluated as
negligent. Street states on page
257 'It has been seen that a
person's conduct must conform to
the standard of a person of
normal intelligence. When a
person holds himself out as
being capable of attaining
standards of skill in relation
to the public generally .... -
he is required to display the
skill normally possessed by
persons doing that thing. A
doctor failing to diagnose a
disease cannot excuse himself by
showing that he acted to the
best of his skill if a
reasonable doctor would have
diagnosed it. Nor can a young
hospital doctor escape liability
simply by pleading that he is
inexperienced or overworked. He
must still attain the level of
competence to be expected from a
person holding his ‘post' and
entrusted with his
responsibilities'. Thus in the
case of Ghana Protein Company v.
PHC Motors (judgment entered on
9th June 2009), I identified
that the law holds an objective
standard that must be applied to
each set of circumstances to
determine whether there has been
breach of the duty of care or
not, The determination of the
standards to be applied are a
matter of fact elicited from the
evidence. In Agbemashior v.
State Insurance Corporation 1972
2 GLR 65, Abban 3 as lie then
was had this to say on the
relationship between a finding
of negligence and the standards
that must be identified to
arrive at such a finding or not:
'I do not think I need deal at
any great length with the
question of a solicitor's
liability for negligence. It is.
the same as anybody else's
liability; having regard to the
degree of skill held out to the
public by solicitors, does the
conduct of the solicitor fall
short of the standard which the
public has been led to expect of
the solicitor'? In summary, to
determine whether the bank or
the plaintiff was negligent,
since both allege negligence on
the part of the other, the
question I need to ask is -
'having regard to the degree of
skill., required to be exercised
by banks in discharging their
duties to their clients, did the
conduct of the defendant fall
short of the standard which the
public has been led to expect of
bankers?' and vice versa 'having
regard to the degree of skill
required to be exercised by
customers of the defendant bank
in the writing of cheques and
monitoring of their accounts,
did the conduct of the plaintiff
fall short of the standard which
the bank has been led to expect
of its customers?. My answer to
both questions is that in
relation to all the cheques,
without exception, the
plaintiff, acted below the
standards expected of them in
the discharge of their duty As a
customer of the bank, and in
relation to all the cheques
except for only four cheques,
which I will describe later,the
conduct of the defendant fell
far short of the standards
expected of them. They were both
negligent and ought to carry
liabilities in this case. I will
first deal with the duty of care
held by a customer. The most
salient duty pointed out by the
defendant in this action has
since 1918 been identified in
the seminal case of London joint
stock bank Ltd v. Macmillan and
Arthur (1918) AC 777. It is
known as the macmillan duty.
This duty directs that the
customer of a bank ‘undertakes
to exercise reasonable care in
executing his written orders so
as not to mislead the bank or to
facilitate forgery’. Thus the
defendant’s defence that the
plaintiff breached a duty not to
facilitate forgery in the manner
in which it wrote its cheques is
totally on point within the law
of contracts and this court
agrees with the defendant that
the plaintiff breached its duty
of care to the defendant in the
manner in which it wrote the
cheques that were altered. The
cheques tendered by the
plaintiff are 71 (exhibits A to
A70) in number and those
tendered by the defendant are 67
in number (exhibits 4,5,6,7,8
series).many of the cheques were
tendered by both parties and so
there is an overlap. when a
reconciliation of the numbers of
plaintiff’s exhibits which were
not also tendered by defendant
(26 in all) and defendant’s
exhibits not tendered by
plaintiffs (21 in all) is done
the total number of cheques
tendered in court between the
parties is 93. In coming to this
conclusion, I did an examination
of each and every one of the 93
cheques, as required of me.I
also applied knowledge obtained
from experience as a citizen who
regularly writes cheques. The
third information that directed
my thinking is the standard of
conduct directed by the bank in
exhibit 9, the cheque book
tendered, in which the inside
leaf has direction for a bank’s
customer in securing their
cheques including the words
‘write the amount, in words and
figures closely against the left
hand margin & the currency
symbol, so that no other words
or figures.can be added.’ I do
appreciate that this direction
does not create a contractual
obligation. My evaluation is
that along with common sense,
decided case law such as the
Macmillan case, it identifies a
standard of conduct which helps
this court to determine whether
'the conduct of the plaintiff
fall short of the standard which
the bank has been led to expect
of its customers': Although the
word 'closely' in exhibit 9 is
not defined, I surmise that
since the numbers with the least
number of words (one, two, six)
have a maximum of three words,
that space left before the
writing commence should not be
enough for a three letter
number. Even with the smallest
writing, this should cover a
maximum of four millimeters - or
two millimeters for each letter.
Thus even allowing for one
millimeter extra, the most
careless customer should leave
not more than five millimeters
at the left hand margin before
writing the cheque sum in words
and two millimeters from the
currency symbol. I have used a
ruler to measure each of these
cheques, and looked for the
cheques with writing which
commenced more than five
millimeters from the left hand
margin and two millimeters from
the currency symbol. The simple
position is that all cheques
tendered by both plaintiff -
exhibit A series and all cheques
tendered by defendant— exhibits
4, 5, 6, 7 and 8 series;
written, more than six
millimeters from the left margin
of the cheque leafs. Some of
them almost commenced from the
middle of the line. But even
worse, it was not only the first
line from which the figure was
written in words that the
writing commenced away from the
left margin. In virtually every
cheque, the second and third
lines also commenced away from
the left margin. Another feature
of these cheques is that
invariably, and with the
exception of only only four -
exhibits 6c, 6h, 6g, 6p -the
first letter of the original
first word of the value of the
cheques written in words is a
small letter and not written in
capitals, a manner of writing
which is grammatically wrong and
depicts carelessness on the side
of the plaintiff's Managing
Director if he ignored such
cheques written in this way -
especially where space beyond
five millimeters is left before
the number commencing with a
small writing. The words of the
value of a cheque constitute a
sentence, and when a cheque is
presented where the first word
starts with a small letter,
especially so far away from the
left margin of the cheque leaf,
there can be no conclusion other
than that the plaintiff's
Managing Director, as the
principal directing mind of the
plaintiff company with its
mandate to write cheques, acted
negligently in signing cheques
that were presented to him in
this form. Cheques in this group
also show a standard of conduct
far below what is expected of a
customer. There can be no
hesitation in finding that the
lapse of signing cheques written
in this manner - even without
the warning on the inside page
of every cheque book - is the
height of carelessness which no
responsible customer of a bank
should indulge in. I will now
consider whether the defendant
was also negligent in its
conduct. I have already stated
that I find that the defendant
was equally negligent in the
skill it applied to the handling
of the plaintiff's cheques and
the statements made hereafter
explain this position In support
of the plaintiff's case, its
Managing Director and Alhaji
Yakubu, a foremost handwriting
expert in this country testified
It was the position of both of
the gentlemen that the defendant
should have noticed the fraud
perpetrated because of the
manner of writing on the cheques
brought to them to honor.
Firstly, the alterations in the
form of the words of the
additional figures were squeezed
against the original first word
written, away from the left
margin in a manner that was
abnormal. Alhaji Yakubu also
identified that some of the ink
used for those first words were
different and deeper than the
ink used in writing the rest of
the cheque. Thirdly, the
handwriting of the person
purporting to write the cheque
was similar to the person to
whom the cheque was addressed,
this person definitely not being
the authorized signatory of the
account, and in many
circumstances, the handwriting
of a third person to whom the
purported original drawee
endorsed the cheque was the same
or similar to the writer of the
cheque and the original drawee,
when these three persons are not
supposed to be the same persons.
It is the plaintiff's case that
these circumstances were so
suspicious that the defendant
should not have paid out these
cheques .had it exercised due
skill. I have examined all 93
cheques and grouped them to
assist in describing them. The
first group of cheques is the
cheques where the writing
started far away from the left
margin and the second group are
the cheques whose original
writing commenced with small
letters. I have already
identified these in my
discussion of the plaintiff's
breach of its duty of care. The
third group is where the writing
of the first word which was
added after the original writing
is tightly squeezed against the
second word written as described
by Alhaji Yakubu and Mr. Italo.
This is obviously a manner of
writing which is not normal,
since by the very manner in
which numbers are properly and
grammatically written, a space
is left between numbers. Thus it
is not normal for the word
'three' to immediately follow
'twenty' in the writing of
'twenty three' and where this is
done, it is reasonable to expect
that a banker who looks at such
a cheque should be curious and
notice this strange manner of
writing. Failure to do so,
especially coupled with other
features which should alert to
forgery and will be discussed in
the fourth group, can only be
conduct that falls far below
that of a diligent banker, and
it is my finding that it amounts
to negligence. The cheques in
this group are all cheques
tendered by plaintiff except
A32, 36, 40, 45, 46, 49, 50,
52,53, 56, 59, 63, 64,65,66, 67,
68, 69,A70, A71 (20 cheques out
of 71); and all cheques tendered
by defendant except 8m, 4,
4b/A63, 4e 4c/A53, 6c, 6e, 61,
6j, 7a, 7h, 71, 7m, 7p,7r, 7t,
7w/A69, 7y, 7z, 7aa/A68, 8f/A59,
8g/A36, 81, 8m/A64, 8n/A52, 8p,
8q, 8k/A67, (28 cheques out of
67). Taking out the exhibits
which overlapped, these cheques
are 19 in number. The fourth
group is cheques on which the
handwriting of the person who
wrote the cheque on the face of
it is obviously the same as the
handwriting of the drawer of the
cheque. Cheques in this group
are all cheques tendered by
plaintiff except A65, 66, and
all cheques tendered by
defendant except three (3)
namely exhibits 6j, 7a, 81. A
banker who is confronted with
such a cheque, an indication
that the person with the mandate
to Write the cheque, is the same
person who is withdrawing the
money from it, when the name of
the drawee is not the same as
the person with the
mandate,Ought to pay special
attention and clarify from the
holder of the cheque book how
the same handwriting which ought
to be his, is endorsing a name
which is not His. in some cases,
the named drawer endorsed it to
a third party and the
handwriting of the drawee
endorser is still the same as
the handwriting of the one Who
wrote the cheque and the one who
originally endorsed it. so
although three persons were
supposed to have written on
these cheques, all three
different persons had the same
or extremely similar
handwriting. This is the fifth
group of cheques and it
comprises all cheques tendered
by defendant except
4,4a,4e,4f,5,6b,6j,6I,7,7a,7b,7f,7g,7d,7h,7I,7n,7t,7u,7v,7x,8b,8e,8f,8h,8I,8m,8r,
and the following cheques
tendered by plaintiff
A-A4,8,10-18,A20,A54,55,57,59.In
its defence, the defendant
called DW1,Ms Adobea Owusu Addo,
an officer who worked in
operations.she described the
standards the bank was expected
to work to and did work to.By
the evidence of this witness of
the bank,which was not
challenged, the bank’s standard
operation obligation was to
check whether a cheque was
signed by the mandated
signatory,the numbers and
figures tallied,and the dates
were appropriate – such that the
cheque was not premature or
expired.she also testified that
the bank exercised a standard of
conduct where every cheque with
a value of more than 3,000s
could not be paid by a counter
clerk without cross checking
with a second official.both she
and Ms Valerie BruhI,testified
that after taking these
steps,they had discharged their
duties.the defendant’s witness
gave evidence that in the event
of any suspicion about the
cheques,they called the office
of the plaintiff and were
directed to speak to the
accountant – the very man behind
the fraud – and to the extent
that they called the plaintiff
company before honoring the
cheques and got permission from
Zeleku,their conduct did not
amount to negligence. I disagree
totally with them on this
position and will now discuss
the legal principles that
undergird the position I have
taken. To quote page 483 of
paget’s, ‘a paying bank acts as
its customer’s agent.’ An agent
owes duties to its principals.
Thus in Ruben v. Great Fingall
Consolidated Ltd 1906 AC 439,
the House of Lords held that
thedoctrine that a person is
deemed to have notice of a
company's articles of
association, and need not
inquire whether the domestic
arrangements necessary to carry
out a power of delegation have
been made, has no application
where the document to which
principle is sought to be
applied is a forgery. As such,
even if the defendant had notice
of internal arrangements where
the person to check with in the
event of suspicion of material
alteration was Zeleku, it is my
opinion, supported by case law I
will refer to shortly, that if
it came to the bank's notice
that the same Zeleku was the
person behind the forgeries by
the reason of the handwritings
being similar to his, its duty
to the plaintiff was not
discharged by purportedly
calling Zeleku to validate the
cheques. In the words of Lord
Lorebun LC at page 443 of the
Ruben case 'It is quite true
that persons dealing with
limited liability companies are
not bound to inquire into their
indoor management, and will not
be affected by irregularities of
which they had no notice But
this doctrine, which is well
established, applies only to
irregularitites that otherwise
might affect a genuine
transaction. It cannot apply to
a forgery It would seem that
after many controversial
decisions on the standard of
care to be demanded of a bank
when bills paid are identified
to be forgeries, the courts have
settled to a position that is
considered balanced. In the case
of Barclays Bank plc v.
Quincecare Ltd 1992 4 All
England Report 363, in defining
the paying bank's duty of care,
it was held after careful
consideration of competing
factors that a banker must
refrain from executing an order
if and for so long as he is put
on inquiry in the sense that he
has reasonable grounds (although
not necessarily proof) for
believing that the order is an
attempt to misappropriate the
funds of a company. The court
observed that factors such as
the standing of the corporate
customer, the bank's knowledge
of the signatory, the amount
involved, the presence of
unusual features, and the scope
and means for making reasonable
inquiries would be relevant In
Lipkin Gorman v. Karpnale Ltd
1992 4 All ER 409, (Court of
Appeal) in discussing the
standard of care that a bank
carries an obligation for, May L
J said interalia 'In the simple
case of a current account in
credit the basic obligation on
the banker is to pay his
customer's cheques in accordance
with his mandate. Having in mind
the vast numbers of cheques
which are presented for payment
every day ....it is in my
opinion only when the
circumstances are such that any
reasonable cashier would
hesitate to pay a cheque at once
and refer it to his or her
superior, and when any
reasonable superior would
hesitate to authorize payment
without enquiry, that a cheque
should not be paid immediately
upon presentation and such
enquiry made....' See page 421.
The standard of care was then
formulated by Parker L J as
follows at page 441 'The
question must be whether if a
reasonable and honest banker
knew of the relevant facts he
would have considered that there
was a serious or real
possibility albeit not amounting
to a probability that his
customer might be being
defrauded... That at least, the
customer must establish. If it
is established then in my view a
reasonable banker would be in
breach of duty if he continued
to pay cheques without enquiry.
He could not simply sit back and
ignore the situation' Please see
pages 494 to 498 of Paget's Law
of Banking. And I do not
hesitate to take the guidance
given by their Lordships in this
case, although it is not binding
on me. It is to be appreciated
that if a counter cashier who is
under pressure looks at any of
the alterations on the cheques
tendered in this case, they
might miss that one because of
the pressure of work. However
all of exhibits A to A33, and 68
and 69, and all the exhibits of
defendant except exhibits 4, 4a,
4b, 4c, 4d, 4e, 4f, 5, 8, 8a,
8b, 8c, 8d, 8e, 8f, 8g, 8h, 8j,
8k, 81, 8m, 8n, 8p, 8q, 8r, 8s
had values over GH¢3,000. They
were therefore dealt with not
only by a counter cashier, but
also critically evaluated by a
senior officer of the bank. And
for even the ones listed from
Exhibit 4 to 8s above, the
alterations were multiple,
inviting notice by any alert
banking officer. The standard of
work to be used to assess
whether the alteration of the
cheques valued over GH¢3,000
should have been noticed by the
bank acting by its employees is
as therefore: i. a cheque first
noticed by a counter cashier
because its value is beyond GH¢3,000
and passed on to a senior
officer to assess ii. a cheque
examined by a senior officer of
the bank, and discussed with the
customer of the bank. This
process would take more than 10
minutes of close examination by
different levels of bank
officers. Thus each of these
cheques was not seen only
cursorily but examined because
of the values. With this level
of examination, there should be
no reason why these different
officers of the bank should not
have seen the material
alterations that were glaring
from the face of each cheque. Of
course, if the money involved is
at the level of a sum below
which it is sufficient for a
counter clerk to deal with the
cheque leaf, the opportunity for
close examination which should
throw up any of these
peculiarities may not arise. But
with the sums involved, a senior
official had opportunity to
examine these cheques, and ought
to have clarified this situation
with the signatory of the
account. But what makes worse
the entire situation is that
with the exception of very few
cheques which I will discuss,
each of the cheques tendered by
the parties including those
below GH¢3,000.00 had more than
one feature which ought to have
alerted to forgery - such as the
squeezing of the first and
second words on the cheques, in
addition to the similarities of
writing. To my mind, the need
for the bank's alertness as to
fraud is made even more keen by
the double and sometimes triple
whammy of irregularities on
these cheques. It is my finding
that any failure of the bank's
officials to notice the
alterations complained of
constitutes negligence. And more
particularly so when the bank is
so alert as to forgeries that it
has written in the inside pocket
of exhibit 9 steps that a
customer needs to take to ensure
safety and security. What about
the bank's position that they
validated cheques with the
customer through Zeleku. I fail
to appreciate this argument.
First, with the exception of
exhibit 4, there is no
indication that any of these
cheques was validated with their
customer. Secondly, the bank
failed to tender any evidence
showing a contractual variation
to deal with a person other than
the mandated signatory on the
account and more significantly,
not to speak with the mandated
signatory if the suspicious
circumstance involved the very
accountant who they alleged the
signatory had told them to deal
with. to my mind, if I ask you
to deal with an officer of a
company, and the record., before
the bank shows that he is the
very person who is involved in a
glaring irregularity, the
'bank's duty to its custormer is
not discharged by saying that
the mandated signatory had told
them to deal with that officer.
Thirdly, the position stated was
supposed to be a general one and
no evidence was placed before me
to prove that for any particular
one of these cheques, the bank
actually spoke to Italo and he
directed them to speak with
Zeleku. Even if such a general
direction existed, it did not
remove the bank's duty to inform
its customer of irregularities
that should have been brought to
his attention. That duty is
carried by the defendant
independent of any careless
conduct of the plaintiff as a
customer and the plaintiff's
recklessness will not serve to
exonerate the defendant bank
from its own obligations. There
were 8 cheques which were all
cashed directly by Zeleku. These
are 4b, 4c, 7p, 7w, 7y, 7z, 7aa,
8k. They would-have been perfect
forgeries but for the fact that
the handwriting of the one who
wrote out the cheques is the
same handwriting as the person
who withdrew them, and yet the
withdrawer's name is not the
name of the person with the
mandate to write out cheques on
that account further. It must be
noted that exhibits 4a :and 4e
were supposed to have been
cashed by Michael Sanyo whose
picture is at the back of the
cheques and exhibit 8q was
endorsed by Richard Owusu Ansah
and yet the handwriting of the
drawers/endorser were the same
as the One who wrote the cheques.
These are examples of cheques
that the defendant should not
under any circumstances have
paid out without checking with
the mandated signatory of the
account. My final finding is
that exhibits A46, 6j, 7a, 81,
are the only four cheques which
should be considered perfect
forgeries for which defendant
can be totally exonerated from
negligence for paying out
without consulting with Mr.
Italo because there was nothing
on either the face or back of
them which should rouse any
suspicion for the defendant. The
signature of the signatory was
right, the dating was legal, and
the handwriting of the drawee
was different from that of the
signatory. In summary, defendant
was liable for all cheques
tendered in this suit except for
A46, 6j, 7a, and 81. These are
valued at (GH¢11,335.40)
Deducted from the claim of the
plaintiff, this sum amounts to
174,664.60 The plaintiff is
seeking damages for the
negligence. It is my finding
that since the parties were
equally negligent, they should
equally share the cost
occasioned by the negligence in
writing these cheques and paying
them out without validating them
with the authorized signatory.
Half of the sum lost die to
defendant and plaintiff's joint
negligence is GH¢87,332.30 and
the defendant is ordered to
reimburse the plaintiff with
this sum. Each party to bear
their costs. COUNSEL:MR.KWAKU
YEBOAH APPIAH HOLDING BRIEF OF
MR.OSCAR FORDJOUR FOR PLAINTIFF
PRESENT MRS.MARY NARTEY HOLDING
MR.DAVID HESSE'S BRIEF FOR
DEFENDANT ABSENT |
