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On
28-05-2010, the applicant, Nana
Yaa Ayebea invoked the
jurisdiction of this court for
an order that the respondent,
Amalgamated Bank Ltd., remove
the unauthorized restrictions
imposed on the personal bank
account of the applicant with
the respondent. The case of the
applicant is that she was
arrested at dawn on Friday,
02-04-2010 and detained at the
Kotobabi Police Station, Accra
and subsequently charged with
the offences of conspiracy to
steal and stealing contrary to
sections 23 (1) and 124 (1) of
the Criminal Offences Act, 1960
(Act 29). She was arraigned
before the Circuit Court, Accra,
on Wednesday, 07-04-2010, and
released on bail pending trial.
The applicant states that, as a
staff of the respondent, he was
obliged to maintain an account
with it. Since her arrest, the
respondent has blocked and put
restrictions on the operations
of her account making it
impossible for her to have
access to it. Consequently, she
has been reduced to a beggar
status and has to rely on
friends and relatives to be able
to feed herself. It is, further,
the case of the applicant that
without any order from a court
of competent jurisdiction, the
respondent has no right to
deprive her of access to her
personal account with it, which
is her only means of sustenance.
The unauthorized blockage of her
account offends against her
fundamental human rights to
property, that is her personal
account which the respondent has
no right to interfere with in
accordance with article 18 (2)
of the 1992 Constitution. The
said restriction is unlawful and
unless ordered by the court to
remove the unlawful restrictions
she would continue to suffer
hardship and inconvenience. The
case of the respondent is that
the applicant is an employee of
the respondent attached to the
Kwashieman branch with
responsibility as a Unit Head of
the Business Development Unit
and next in command to the
Branch Manager. Prior to her
transfer to the Kwashieman
branch, the applicant was
attached to the Accra New Town
branch where she served in a
similar capacity. As Unit Head
of the Accra New Town branch,
the applicant was responsible
for the management of various
accounts on behalf of the
respondent including Zoomlion
Ghana Limited. The applicant in
breach of her duties,
responsibilities and trust
towards the respondent and the
customer, conspired with other
accomplices and, with the intent
to steal, faked documents and
fraudulently opened an account
at the Accra New Town branch in
the name of Dela Cleaning
Services. She, further,
conspired with her collaborators
and fraudulently and criminally
transferred an amount of US
$120,000.00 (one hundred and
twenty thousand United States
Dollars) or GH¢168,000.00 (one
hundred and sixty- eight
thousand Ghana cedis) from the
account of Zoomlion Ghana
Limited into the said account of
Dela Cleaning Services. The
applicant and her accomplices
then succeeded in stealing a
total amount of GH¢165,000.00
(one hundred and sixty-five
thousand Ghana cedis) from the
said account of Dela Cleaning
Services. When the theft was
detected, the respondent
reported the case to the
Kotobabi police and the Regional
Police Commander who immediately
commenced investigations into
the matter resulting in the
arrest of the applicant and some
accomplices while some are still
at large, and charged them for
inter alia, conspiracy to commit
crime to steal and stealing and
arraigned before the Circuit
Court. The respondent states
that, with the exception of the
applicant and another
accomplice, Gifty Ayoka, (an
ex-staff of the respondent), all
the other accomplices, including
those at large, have admitted
their involvement in the crime
and inform the respondent and
the police that the applicant
and Gifty Ayoka masterminded the
crime. The accomplices who have
admitted the offence have
refunded GH¢ 48,800.00
(forty-eight thousand, eight
hundred Ghana cedis) out of
their share of GH¢ 60,000.00
(sixty thousand Ghana cedis) and
deposited same with the police
leaving the sum of GH
¢105,000.00 (one hundred and
five thousand Ghana cedis) which
went to the applicant and Gifty
Ayoka, still outstanding. It is,
further, the case of the
respondent that, following the
admission by the other
accomplices as well as its
independent preliminary
investigation, it has, in
accordance with its staff policy
and in protecting the customer's
interest, suspended the
applicant and frozen her account
with it, pending thorough
investigations into the matter.
It froze the applicant's account
in order to preserve its
interest and that of its
customer and mitigate its losses
as a result of the theft by the
applicant. It is again the case
of the respondent that it is
entitled to restrict whatever
sum there is in its possession
which is due to the applicant
pending her exoneration or
otherwise so as to use same to
offset part of the customer's
monies if found guilty. The
nature of the allegations
against the applicant is such
that the respondent is entitled
to dismiss her summarily in
which case she forfeits all her
entitlements, part of which form
the subject matter of her
application. The applicant is
due to appear before the
respondent's Disciplinary
Committee, shortly, to explain
her role or otherwise in the
fraudulent transfer of the funds
from the account of Zoomlion
Ghana Limited to that of Dela
Cleaning Services and subsequent
theft of same. The respondent
also states that the applicant
and Gifty Ayoka have purchased
tickets and completed lodging
arrangements for the World Cup
2010 which was recently held in
South Africa and will most
likely totally abscond from the
jurisdiction if she is granted
access to her funds with it. If
the applicant is acquitted,
which is most unlikely, the
respondent is in a position to
make full and complete
restitution of her entitlements
to her. On the other hand, if
the court orders the respondent
to release the restriction on
the applicant's account to
enable her withdraw the funds
therein while investigations are
still on-going she will not be
able to make full and complete
restitution to the respondent
and the customer for that matter
when found guilty, which is most
likely, and this will be unjust
and inequitable. The respondent
also states that the issues and
the relief sought by the
applicant, being civil in
nature, require the applicant to
have commenced her action by way
of a writ of summons and not a
motion. The respondent again
states that the facts presented
by the police at the Circuit
Court to support the charges are
merely preliminary facts which
will be amended upon concluding
their investigations. Finally,
the respondent states that the
applicant has not been reduced
to a beggar status as she claims
because she has other bank
accounts that hold sufficient
funds, indeed, far above her
legitimate earnings from her
employment with respondent to
take care of her needs till the
final determination of the case.
The respondent gives the account
numbers and the banks holding
same and says the applicant used
part of the proceeds from her
criminal activities to grant
loans to some persons. The
respondent, therefore, prays
that the court dismisses the
application with cost since it
is intended to deny the customer
and the respondent of getting
refund of the funds when the
applicant is found guilty. The
application was moved on
16-06-2010 with each party
relying on her/its affidavit.
Counsel for the applicant, in
reaction to the factual matters
in the affidavit in opposition,
states that they are all mere
allegations. From the
allegations and counter
allegations of the parties, two
facts are undisputable. One is
that the applicant and the
others have been charged with
conspiracy to steal and stealing
contrary to sections 23 (1) and
124 (1) of Act 29 and arraigned
before the Circuit Court. The
allegation is that they
conspired and stole money from
the account of Zoomlion Ghana
Limited, a customer of the
respondent. As to whether those
charges are sustainable or not
it is within the domain of the
Circuit Court. The other
indisputable fact is that the
respondent has suo motu blocked
the account of the applicant
with respondent and it is this
fact which provoked the action
before this court. Two issues
arise for determination from the
affidavits namely: (a) whether
the applicant properly invoked
the jurisdiction of this court
by this motion or she should
have come by writ of summons.
(b) whether the respondent
violated the applicant's human
rights by blocking her account.
On the first issue, article 33
(1) of the 1992 Constitution
provides the answer. Article 33
(1) states as follows: "Where a
person alleges that a provision
of this Constitution on the
fundamental human rights and
freedoms has been or is being or
is likely to be contravened in
relation to him, then, without
prejudice to any other action
that is lawfully available, that
person may apply to the High
Court for redress." (my
emphasis). What article 33 (1)
of the Constitution means, in my
view, is that a person who
alleges any violation of his
fundamental human rights and
freedoms has a choice to make.
He may take any action that is
lawfully available to him, which
includes issuing a writ of
summons to enforce his rights
and freedoms or he may apply to
the High Court for redress. In
this case, the applicant alleges
that the respondent has violated
and is continuing to violate her
right to property by blocking
her account pursuant to article
18 of the Constitution. As a
result, she has chosen to apply
to this court for redress
instead of issuing a writ to
enforce his right. The
applicant, by virtue of article
33(1) of the Constitution, is
entitled to make that choice.
So, the case of the respondent
that the applicant should have
commenced her action by way of a
writ of summons and not a motion
is without basis. It has also
been submitted by counsel for
the respondent that the
applicant should have served the
Attorney-General with her
application. This submission
certainly emanates from the
provision of Order 67, of the
High Court (Civil Procedure)
Rules, 2004 (C. I. 47), the
procedural rules governing
applications for the enforcement
of fundamental human rights.
Order 67, rule 1 provides as
follows: "A person who seeks
redress in respect of the
enforcement of any fundamental
human rights in relation to the
person under article 33 (1) of
the Constitution shall submit an
application to the High Court."
Then, Order 67, rule 2 (2)
provides as follows: "A copy of
the application shall be served
on the Attorney-General and such
other persons as the Court may
direct." In my view, the need to
serve the Attorney-General only
arises where the respondent is a
public body whose acts are acts
of the State where by article 88
(5) of the Constitution the
Attorney-General would be
responsible for defending the
State. It would not apply where
the respondent is a public body
with legal capacity to sue and
be sued or to a private entity
like the instant respondent. On
the second issue, article 18 of
the Constitution guarantees the
protection of property. Article
18 provides as follows: "1.
Every person has the right to
own property either alone or in
association with others. 2. No
person shall be subjected to
interference with the privacy of
his home, property,
correspondence or communication
except in accordance with law
and as may be necessary in a
free and democratic society for
public safety or the economic
well being of the country, for
the protection of health or
morals, for the prevention of
disorder or crime or for the
protection of the rights or
freedoms of others." By article
12 of the Constitution, the
fundamental human rights and
freedoms enshrined in the
Constitution are to be respected
and upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies, and Where
applicable, by all natural and
legal persons in Ghana and the
courts are enjoined to enforce
these rights and freedoms. The
respondent, a limited liability
company, is a legal' person. It
is, thus, required to respect
and uphold the rights and
freedoms contained in the
Constitution. In this case, the
respondent is expected to
respect and uphold the right of
the applicant to access her bank
account which the respondent is
keeping pursuant to article 18
of the Constitution. The
respondent is only entitled to
restrict the applicant's access
to her account if it does so "in
accordance with law and as may
be necessary in a free and
democratic society for public
safety or the economic
well-being of the country, for
the protection of health or
morals, for the prevention of
disorder or crime or for the
protection of the rights or
freedoms of others." (See
article 18 (2) of the
Constitution) The respondent's
defence is that it owes a
fiduciary relation to its
customers (in this case,
Zoomlion Ghana Limited) to
protect their accounts as such
it is entitled to block the
applicant's account so that in
the event of her being found
guilty the money in the account
would be used to pay Zoomlion
Ghana Limited for the loss it
incurred by the theft. It is
true that the respondent owes a
fiduciary relation to its
customers such as Zoomlion Ghana
Limited. But that does not
entitle it to, suo motu,
interfere with the personal
account of the applicant however
much it thinks that the
applicant is culpable of charges
she is standing trial before a
court of law. It simply amounts
to taking the law into its own
hands. The respondent has thus
violated the applicant's right
to own property (that is money
in her personal bank account
with the respondent) by refusing
her access to the said account.
The applicant is, therefore,
entitled to the order she seeks
from this court by her
application. Accordingly, the
respondent herein, Amalgamated
Bank Ltd, is hereby ordered to
give the applicant, Nana Yaa
Ayebea, access to her personal
bank account with the
respondent. The application is,
accordingly, granted. COUNSEL:
1. Mr. Robert Dassah for
Applicant 2. Mr. Redeemer Adzaku
for Respondent.
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