Court name
Court of Appeal
Case number
CIV APP 74 of 2018

Memunatu Kuyateh And United Bank for Africa (SL) Ltd (CIV APP 74 of 2018) [2021] SLCA 8 (16 December 2021);

Media neutral citation
[2021] SLCA 8
Case summary:

Court of Appeal - Fraudulent Conversion - Judgement of the High Court be set aside and substituted by the Court of Appeal - 

Coram
Halloway, JSC
Sesay, JA
Taylor-Camara, JA

JUDGEMENT
DELIVERED THIS DAY 16th OF December    2021

MEMUNATU KUYATEH, the Appellant herein being aggrieved by and dissatisfied with the Decision/Judgement delivered by the HON. MS. JUSTICE MIATTA M. SAMBA J (as she then was) dated the 12th October 2018, hereby on the 16th October 2018, appeal the said Decision/Judgement on the following grounds:

1.    That the Learned Trial Judge failed to legally and adequately review, consider and evaluate the factual evidence that was before the Court in arriving at her various conclusions throughout her Decision/Judgement aforesaid. 
 
3.    That the Learned Trial Judge erred in law or misdirected herself by not considering the breach of not complying with a customer’s instructions.
4.    That the Learned Trial Judge erred in law and in fact by omitting to consider and hold that the several unauthorized withdrawals made by a Senior Officer (the Head of Audit) of the 1st Respondent Bank without any prior instructions from a customer was fraudulent and/or unlawful.
5.    That the Learned Trial Judge erred in taw and in fact by omitting to consider the evidence before the court that, the Appellant did not authorize the said withdrawals when she held that the Appellant ought to have proven that the signatures on the impugned withdrawal slips were not hers.
6.    That the Learned Trial Judge erred in taw or misdirected herself in dismissing the action brought by the Appellant on the grounds of the undertaking signed by the Head of Audit of the 1st Respondent Bank.
7.    That the Decision/Judgment aforesaid was given per incuriam
8.    That the Decision/Judgment aforesaid is against the weight of evidence.

Wherefore MEMUNATU KUYATEH, the Appellant herein pray that the Decision/Judgment of the High Court delivered by the HON. MS. JUSTICE MIATTA M. SAMBA J (as she then was) dated the 12th October 2018, be set aside and substituted by a Decision/Judgment of this Court and for the costs of and occasioned by this appeal together with the costs of and occasioned in the Court below be borne by the 1st Respondent herein.

The Learned Trial Judge, HON. MS JUSTICE MIATTA M. SAMBA J (as she then was) on the 12th October 2018, ADJUDGED AND ORDERED as follows:

1.    That the Claim of the Plaintiff (the Appellant), against the Defendants (the Respondents), be dismissed in its entirety.
2.    That the Counterclaim of the said Respondents against the Appellant for Two Thousand United States Dollars US$ 2000.00) fails.
3.    That each party to the action bear their own costs.  

 
The Order aforesaid and in particular the Order that the claims of the Appellant against Respondents be dismissed in its entirety was made pursuant to the trial of an action commenced by a generally indorsed Writ of Summons, issued on the 29th November 2017, the Statement of Claim which was delivered and filed on the 12th December 2017, found at pages 4 to 7 of the Records of Appeal, claiming against the Respondents jointly and severally, for recovery of the sum of Forty Five Thousand Four Hundred United States Dollars (USS 45,400.00), damages for fraudulent and/or unauthorised posting and debit of the sums of Twenty-Three Thousand Five Hundred United States Dollars (USS 23,500.00) and Forty-Five Thousand Four Hundred United States Dollars (USS 45,400.00) respectively, General Damages for Breach of Contract, Any further or other relief(s) and Costs.

Particulars of the Claim aforesaid are that the Appellant is and was at all material times a customer of the 1st Respondent Bank, who are and were at all material times a Limited Liability deposit-taking Financial Institution carrying on business, with its head office at Charlotte Street, Freetown; that the said Appellant maintained two (2) separate United States Dollars (US$) account at the 1st Respondent Bank, the said accounts numbered 540110130025046 which was opened sometime in January 2017 and 540110130029848 which was opened sometime in October 2017; that since the Appellant herein is not formally educated, she was assisted by one BRIMA KOROMA to fill out a withdrawal slip, which she then affixed her Right Hand Thumb Print on, in order to withdraw monies from her account; that by virtue of the Appellants literary challenge the 1st Respondent Bank through the said BRIMA KOROMA the Head of Audit and staff of the 1st Respondent Bank, fraudulently withdrew several sums of monies from the Appellants’ accounts at the 1st Respondent Bank.

Particulars of the fraud aforesaid, are that sometime in May 2017, BRIMA KOROMA, the 1st Respondent's Head of Audit separately withdrew the sum of Ten Thousand United States Dollars (USS 10,000.000) and Seven Thousand United Stated Dollars (US$ 7,000.00) from the Appellants’ account numbered 540110130025046; that the said BRIMA KOROMA later notified the Appellant that he had withdrawn the said sums and paid for some building materials having become aware that, the Appellant herein was undertaking construction of a building; that the Appellant by reason of her been uneducated did not know how the said BRIMA KOROMA withdrew the said monies from her account aforesaid, with the 1st Respondent Bank, but sternly warned him never to repeat the unauthorised act/conduct again; that the said Appellant later received, though piecemeal, the building materials aforesaid which the said BRIMA KOROMA had told her he had paid for; that on the 22nd May 2017, BRIMA KOROMA the Head of Audit of the 1st Respondent Bank, also without prior authorisation, consent, knowledge or approval from the Appellant, withdrew the sum of One Hundred United States Dollars (US$ 100.00) from the Appellant’s account with the 1st Respondent Bank numbered 540110130025046; that on the 29th June 2017, the Appellant received an inflow/credit of Twenty Five Thousand Five Hundred United States Dollars (US$ 25,500.00) from her son in the United States of America; that the Appellant was advised by his son not to expend the said sum and that the same should be kept in her account. The said Brima Koroma without authorisation consent knowledge or approval from the Appellant withdrew the sum of Ten Thousand United states Dollars (US$ 10,000.00) from the Appellant’s account with the Respondent Bank numbered 540110130025046; that the Appellant herein never knew and was never notified until October 2017 that the 1st Respondent Bank did a double posting of the credit of the sum of Twenty Five Thousand, Five Hundred United States Dollars (USS 25,500.00) aforesaid on the 30th June 2017; that BRIMA KOROMA the Head of Audit of the 1st Respondent Bank, without any prior authorisation knowledge, approval or consent from the Appellant, fraudulently withdrew the sum of Ten Thousand United States Dollars (USS 10,000.00), Five Thousand Three Hundred United States Dollars (USS 5,300.00), Five Thousand Eight Hundred United States Dollars (US$5,800.00), Ten Thousand United States Dollars (USS 10,000.00) and Four Thousand, Five Hundred United States Dollars (USS 4,500.00) on the 30th June 2017, the 4th uly 2017, the 26h July 2017, the 27lh July 2017 and the 11th August 2017 respectively, from the Appellant’s account with the 1st Respondent Bank numbered 540110130025046; that on the '5th October 2017, the Appellant’s son in the United States of America wire transferred the sum of Twenty Three Thousand, Five Hundred United States Dollars (US$ 23,500.00) into the Appellants’ account with the Respondent Bank numbered 540110130029848; that the 1st Respondent Bank, contrary to the wire instructions of the Appellant’s son, unlawfully and fraudulently credited the Appellant’s account with the 1st Respondent bank numbered 540110139925046, instead of crediting the Appellant’s account with the 1st Respondent Bank numbered 540110130029848; that on the same date, the 19th October 2017, the Respondents deducted the sum of Twenty five Thousand, Five Hundred United States Dollars (USS 25,500/00), which it alleged it had double posted into the Appellant’s account with the 1st Respondent Bank numbered 540110130025046, from the said account.

The Appellant claims that despite repeated verbal and written requests for the Respondents to re-credit her accounts aforesaid, held with the 1st Respondents Bank aforesaid, with the total sum of Forty Five Thousand, Four Hundred United States Dollars (US$45,400.00) which had been unlawfully and fraudulently debited from her accounts, the Respondents have failed and or ignored to adhere to the same, as a result of which the said Appellant has therefore suffered considerable loss and damage.

In Defence to the claims of the Appellant aforesaid, the Respondents herein, delivered and filed a Defence dated the 8th January 2018, the same which is found at page 29 to 30 of the Records of Appeal herein. Contained in the same is that, whereas the Respondents admit that the Appellant maintains Two (2) separate United States Dollars accounts at the 1st Respondent Bank, account numbered 540110130025046 which was opened sometime in January 2017 and account numbered 540110130029848 which was opened sometime in October 2017, they maintain that the account numbered 54011030029848 was opened by the Appellant to fraudulently cover the conversion of the double credit of Twenty Five Thousand Five Hundred United States Dollars (USS 25,500.00) aforesaid, that was mistakenly made by the 1st Respondent Bank into the account of the Appellant that the Respondents deny that when the Appellant called the Respondent Bank to open the account she was principally assisted by Brima Koroma the Head of Audit of the 1st Respondent Bank who later became her sole Account/ Relationship Officer and averred that BRIMA KOROMA was employed by the 1st Respondent Bank as an Auditor with specific mandate and functions and was never assigned to assist the Appellant to open an account or to be her Account/Relationship Officer; the Respondents averred further that they are aware that both BRIMA KOROMA, whom they are currently investigating for his illicit conspiratorial behavior with the Appellant to defraud the 1st Respondent Bank and the Appellant herein had known each other long before the Appellant came to the 1st Respondent Bank to open an account and that they both had a personal relationship with each other that, has nothing to do with the 1st Respondent Bank’s official functions or mandate; the Respondents averred that in answer to the Appellant’s claim that since she is not formally educated she was assisted by the said BRIMA KOROMA to fill out the withdrawal slips and she would then affix her right thumb print in order to withdraw monies from her accounts, they contend that it was the Appellant herself who chose to deal with BRIMA KOROMA in his personal capacity as his relation or acquaintance and not in his official capacity as an employee of the 1st Respondent Bank; the Respondents averred that the Appellant felt comfortable transacting with BRIMA KOROMA and often held him out as her agent and worked with him to defraud the 1st Respondent Bank as well; the Respondents deny the Appellant's claim that by virtue of the Appellant’s literacy challenge, the 1st Respondent Bank through BRIMA KOROMA fraudulently withdrew several sums of monies from her accounts at the 1st Respondent’s Bank and aver in lieu that it was the Appellant who conspired and discretely worked with BRIMA KOROMA to defraud the 1st Respondent Bank; the Respondents also deny that despite repeated verbal and written requests for them to re-credit the Appellant’s account with the total sum, of Forty Five Thousand Four Hundred United States Dollars (US$ 45,400.00) which had been unlawfully and fraudulently debited from her account, they have failed and or ignored to adhere to the same, the Appellant herein who as a result has suffered considerable loss and damage and avers that the Appellant benefited a lot from her fraudulent relationship with BRIMA KOROMA, over and above the respective sums of money that she herself personally withdrew from her account(s) with the 1st Respondent Bank.

It is not disputed that, BRIMA KOROMA, is the Head of Audit employed by the 1st Respondent Bank. However, in upholding the Respondents' denial aforesaid, that when the Appellant herein called at the 1st Respondent Bank to open the account numbered 540110130025046, she was principally assisted by BRIMA KOROMA, the Head of Audit of the 1st Respondent Bank who later became her sole Account/Relationship Officer, it is seen that a prevalent issue which seemed to be dominant in the proceedings at the Court below, is the Appellant’s use of the said BRIMA KOROMA, to help her withdraw from her account with the 1s! Respondent Bank, the sum of Ten Thousand United States Dollars (US$ 10,000.00) and her request for him to continue assisting her whenever she faced any difficulties in having such transactions concerning her account