Memunatu Kuyateh v United Bank for Africa (SL) Limited & Another (CIV APP 74 of 2018) [2021] SLCA 23 (16 December 2021)

hes + CIV. APP. 747018 INTHE COURT OF APPEAL OF SIERRA LEONE “Between: MEMUNATU KUYATEH - Appellant

And: UNITED BANK FORAFRICA(SL)LTD - Respondent THE MANAGING DIRECTOR UNITED BANK FOR AFRICA (SL) LTD - ‘2 Respondent

Coram

HON. MMR, JUSTICE ALLAN B. HALLOWAY + use HON. IMR. JUSTICE MONFRED M. SESAY - A HON. MIR. JUSTICE ELDRED TAYLOR-CAMARA = JA COUNSEL A.S. MARRAH ESQ. of Counsel forthe Appellant IM, P. FOFANAH ESQ. of Counsel forthe Respondents |

Judgement

peuverco Tass Ibih payor Decl goat MEMUNATU KUYATEH, the Appellant herein being aggrieved by and dissatisfied with the Decision4iudgement delivered by the HON. MS. JUSTICE MIATTA M, SAMBA J (as she then was) dated the 12% Oclober 2018, hereby on the 16% October 2018, appeal the said Deciston4Judgement on the following grounds 1, That the Leamed Trial Judge failed to legally and adequately review, consider and evaluate the factual evidence that was before the Court in ariving at her various Conclusions throughout her Decision/Judgement aforesaid, AGF APS, “OR cet PAR he) vee " 1 nly « SLABS, f

4bb Fs 2 That the Learned Trial Jucge errod in lew vid in facl by not eaisiverrg ene applying setied legal principles regarding Vicerious Liebiity or representative carsctios of Banking officers or employees.

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 aw and infact by omitting to consider and hold that {he several unauthorised withdrawals made by a Senior Officer (the Head of Audi of the {Respondent Bank without any prior instructions from a customer was fraudulent andlor unlawtu

5. That the Learned Trial Judge erred in law and in fact by omiting to consider the evidence before the Court that, the Appellant did not authorise 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 law or misdirected herself in dismissing the action brought by the Appellant on the grounds of the undertaking signed by the Head of Ault of the 1 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 thatthe Deciston\ludgment ofthe High Court delivered by the HON. MS. JUSTICE MIATTA M. SAMBA J (as she then was) dated | the 12° October 2018, be set aside and substituted by a Decision/Judgment ofthis Court and for the costs of and occasioned by this appeal together with the costs of and occasioned in the Court blow be borne by the 1#Respondient herein. The Learned Trial Judge, HON. MS JUSTICE MIATTA M. SAMBA J (as she then was) on the 412% October 2018, ADJUDGED and ORDERED as follows

1. That the Claim ofthe Plant (the Appetant), against the Defendants (the Respondents), be dismissed in its entirety. %

2. That the Counterclaim of the said Respondents against the Appeltant for Two Thousand United States Doiars US$ 2000.00) fais. psn

3. That each party to the action bear their own costs. LS) CHO EMyzu Qe ‘ hey AS,

ot 3 ‘The Orders aforesaid and in particular, the Order thot the claims of the Appellant ayains! the Respondents be dismissed in its entirety wes made pursuant to the trial of an ection commenced by a generally indorsed Writ of Summons, issued on the 29° November 2017, the Siatement of Claim which was delivered and filed on the *2°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 (US$ 45,400.00), damages for » fraudulent andior unauthorised posting and debit of the sums of Twenty-Three Thousand Five Hundred United States Dollars (US 23,500.00) and Forty-Five Thousand Four Hundred United States Dollars (US$ 45,400.00) respectively, General Damages for Breach of Contract, Any further or other reliefs) and Costs. Particulars of the Claim aforesaid are that the Appellant is and was at all material mes a customer of the 1# 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 Dolars (USS) account at the 1* 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 fil out a withdrawal sip, which she then affixed her Right Hand Thumb Print | ‘on, in order to withdraw monies from her account; that by virtue ofthe Appellants literary challenge the 1*Respondent Bank through the said BRIMA KOROMA the Head of Audit and staff ofthe 1 Respondent Bank, fraudulently withdrew several sums of monies from the Appellants’ accounts at the 18 Respondent Bank. Particulars ofthe fraud aforesaid, are that sometime in May 2017, BRIMA KOROMA, the 1 Respondent's Head of Audit separately withdrew the sum of Ten Thousand United States Dollars (US$ 10,000,000) and Seven Thousand United Stated Dollars (USS 7,000.00) from the Appellants’ account numbered 540110130025046; that the said BRIMA KOROMA ater 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 1 Respondent Bank, but stemly wamed him never to repeat the unauthorised aclconduct 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 22% May 2017, BRIMA KOROMA the Head of Audit of the 1 Respondent Bank, also without prior authorisation, consent, knowledge or approval from the Appellant, withdrew the sum of One Hundred United States Dollars (USS 100.00) from the a Appeliant’s account with the 1s! Respondent Bank numbered 5401 10130025046; that on the 29" June 2017, the Appellant received an inflow/credit of Twenty Five Thousand Five Hundred United States Dollars (USS 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 withthe 1 Respondent Bank numivered 5401 10130025046; that of the:samie 29" June un Ne 1h at:

ues * 2077, the seid BRIMA KOROMA without any authacisaiion, consent, knowledge or app-cval fom the Appellant herein fraudulently withdrew the sum of Ten Thousand United states Dollars (USS 10,000.00) from the Appellant's account with the 1% Respondent Bank numbered 5401110130025046; that the Appellant herein never knew and was never notified unit October 2017 that the 1* Respondent Bank did double posting of the credit of the sum oi Twenty Five ‘Thousand, Five Hundred United States Dollars (USS 25,500.00) aforesaid on the 30" June 2017; ~ that BRIMA KOROMA the Head of Audit of the 1# Respondent Bank, without any prior authorisation knowledge, approval or consent from the Appellant, fraudulently withdrew the sum of Ten Thousand United States Dolars (US$ 10,000.00), Five Thousand Three Hundred Urited States Dollars (US$ 5,300.00), Five Thousand Eight Hundred United States Dolars (US$5,800.00), Ten Thousand United States Dollars (USS 10,000.00) and Four Thousand, Five Hundred United States Dollars (US$ 4,500.00) on the 30 June 2017, the 4 July 2017, the 26% July 2017, the 274 July 2017 and the 11" August 2017 respectively from the Appellant's account with the 1 Respondent Bank numbered 540110130025046; thal on the “5 October 2017, the Appelian’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’ acoount with the Respondent Bank numbered 540110130029848; thatthe 1s Respondent Bank, contrary to the wire instructions of the Appellants son, unlawiully and fraudulently credited the Appellants account with the 1 Respondent bank numbered 540110139925046, instead of crediting the Appellant's account with the 1* Respondent Bank numbered 540110130029848; that on the ‘same date, the 19 October 2017, the Respondents deducted the sum of Twenty five Thousand, Five Hundred United States Dollars (US$ 25,500/00), which it alleged it had double posted into the Appellant's account with the 1s Respondent Bank numbered §40110130025046, from the ‘said account. ‘The Appellant claims that despite repeated verbal and written requests for the Respondents to re-credit her accounts aforesaid, held wit the 1+ Respondents Bank aforesaid, with the ftal sum of Forty Five Thousand, Four Hundred United States Dollars (US$45,400,00) which had been tuniawully and fraudulently debited from her accounts, the Respondents have failed and or ignored to adhere to the same, as a resuit 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 8 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 1s Respondent Bank, account numbered 5401110130025046 which was opened sometime in January 2017 and account > numbered 540110130029848 which was opened sometime in October 2017, they maintain that the account numbered 5401 1030029848 was opened by the Appeliant 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 1 Respondent Bank into the Appellant's account numbered 540110130025046; that the Respondents deny that'fiien tha” 2 Bivveelein)

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