Ebenezer Co-operative Union-Techiman v Dompeh and Another (A2/68/2021) [2025] GHADC 229 (22 May 2025)

SITTINGINTHE DISTRICT COURT ATWENCHI IN THEBONO REGION ON THURSDAYTHE 22ND DAYOF MAY,2025, BEFORE HIS WORHSIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) SUITNO. A2/68/2021 BETWEEN: EBENEZERCO-OPERATIVE UNION-TECHIMAN - - - PLAINTIFF VS 1. DOMPEHDAVID 2. SETHDONKOR - - - DEFENDANTS J U DGEME NT This writ was filed by the plaintiff herein on the 12th day of May,2021 claiming against thedefendants herein jointly and severally; (a) The recoveryofthe Cashsum ofGH₵136,357.73; (b) Generaldamagesforbreach ofcontract; and (c) Cost and Interest on the GH₵136,357.73 at the current commercial bank rate fromAugust,2020 till dateoffinal payment. The defendants pleaded not liable to the claim after same were read and explained to them. 1 This court upon an examination of the pleadings filed by the parties and the particulars ofthe plaintiff’sclaim, set the following legalissues downfor trial. (1) Whether or not the defendants owe plaintiff the stated cash sum of GH₵136,357.73. (2) Whether or not the plaintiff is entitle to a recovery of the said cash sum from the defendants. (3) Whether or not the defendants breached any contracted agreement between themand the plaintiff. (4) Whetherornot theplaintiff is entitle toany generaldamagesfor abreach. (5) Whetherornot theplaintiff is entitle toany interestonthe amount claimed. In their evidence in chief, the plaintiff Company represented by John Owusu Mends stated he is a Supervising Manager in the plaintiff company and lives in Techiman. That he knows the 1st defendant (D1) who is an employee of the plaintiff Company. That 1st defendant was the branch manager of the Banda-Nkwanta Agency of the plaintiff. That he also knows the 2nd defendant (D2) as the uncle of the 1st defendant (D1) who stood as guarantor for the 1st defendant. That the plaintiff is a financial institution dully registered under the laws of Ghana with its headquarters in Techiman. That it has branches at Wenchi, in the Bono Region, Banda-Nkwanta in the Savana Region and the Techimanmarketbranch in theBono East Region. 2 That the plaintiff employed 1st defendant on the 4th of August,2016 as Assistant Mobile Banking Coordinator and attached to the main office in Techiman. That the terms of the employment including his roles and duties attached to the position were clearly spelt outin theletterofappointment herein tendered and same admitted and marked as‘A’. That after the 1st defendant (D1) served his 6months probation period, he was assigned to Banda-Nkwanta Agency as a Supervising branch manager. That 1st defendant was later re-assigned to the main Techiman office as a mobile banking coordinator as well as a mobile banking auditor from 2nd February,2022 and he accepted both roles. The re- assignment letter, and the acceptance letter tendered and marked ‘B’ and ‘C’ respectively. That the 1st defendant in his capacity as branch manager for the Banda Nkwanta took custody of monies brought from the field by the field agents and credits the accounts of clients and then proceeds to deposit same into the office vault for safe keeping. That the 1st defendant also took custody of all deposits, transfers, etc and releases same for any day to day business of the plaintiff institution at the Banda-Nkwanta branch. That the Supervising managers from the Techiman main branch later went to the Banda- Nkwanta branch for their routine supervision for the period June to August,2020 and where they discovered that there was a shortage of cash in the vault and also some transferswere not made tothe mainbranch. 3 That the Supervisors presented their report on the anomalies discovered to the general manager. That upon receipt of the report, external audit was ordered into the accounts of the Banda-Nkwanta Agency. That the External auditors then audited the Banda-Nkwanta branch covering the period July,2019 to August,2020. That the said audit report revealed that 1st defendant could not account for cash sum of GH₵112,482,73. It also discovered after the audit that 1st defendant misappropriated GH₵17,595.00 of the Wenchi Agency by failing to transfer the said amount from Banda- Nkwanta tothe WenchiAgency. That the internal auditors again discovered another transfer ofGH₵6,280.00 to the main branch which was not affected. That in all a total of GH₵136,357.73 of the plaintiff institution’s money was misappropriated by the 1st defendant. That after the discovery, the 1st defendant was interdicted per a letter dated 13th October,2020 to pave way for further investigations. A copy of the letter of interdiction was tendered and marked ‘D’. That the 1st defendant was then invited by the chief Executive and confronted with the issues in the report. That 1st defendant then accepted the findings in the report and promised to repay the money misappropriated or embezzled. That the management then invited 1st defendant to a board meeting on the 18th of November,2020 to see how he can take steps to repay the money embezzled. That at the said meeting 1st defendant came with his uncle (D2) where 1st defendant accepted the fact that he was embezzled GH₵136,357.73oftheplaintiff’smoney and promised topay same back. 4 That the 2nd defendant then guaranteed for the 1st defendant and pleaded that the 1st defendant will comply with the payment planas proposed by the management boardof the plaintiff institution. That the defendant then proposed to pay back the money in 24month but the board rejected the proposal and told them to pay half of the money by the31stofDecember,2020 and the restspread for themtopay in 24months. That there the defendant requested for time to go and prepare and then come and pay the half by the end of December,2020. A copy of the minutes of the said meeting was tendered and marked as Exhibit ‘E’. That 1st defendant thereafter failed to pay the money as promised after the expiration of the time. That all subsequent calls to 1st defendant to pay did not yield any results. That 1st defendant later went into hiding but was later arrested with an absconding warrant from the court. The plaintiff therefore prayedthatthe courtgrants themthe reliefs. The first witness for the plaintiff was one Appiah Agyarko (P.W.1). He said he lives in Techiman and is the general manager of the plaintiff institution which is located in Techiman. That he knows the 1st defendant (D1). That 1st defendant is a former employee of the plaintiff company. That 1st defendant was assigned to the Banda Nkwanta Agency as Supervising Manager. That he also knows the 2nd defendant (D2) who is the uncle of 1st defendant and who at all material time guaranteed for the 1st defendant to repay the money embezzled. P.W.1 said he knows one Mr. Mends Owusu as the Supervising manager of the plaintiff institution who was appointed by the 5 management board to represent the plaintiff institution in this case. That the plaintiff institution has four (4) branches located at Techiman (Head Office) two branches, then Wenchiand theBanda Nkwanta in the Savana Region. That 1st defendant upon his employment was sent to the Banda Nkwanta Agency as a Mobile Banking Coordinator and attached to the Techiman branch. That later in August,2016, P.W.2 went on her usual supervising checks to the Banda Nkwanta Agency. She did the checks for a whole week from 3rd August,2020 to 10th August,2020. That after the checks P.W.2 reported to him (P.W.1) that she detected a cash shortage of GH₵20,500onhand in the office vault from the records ofthe books. That P.W.2 further reported that 1st defendant ranted a facility (loan) of GH₵30,000.00 to one Duako Ebei without approval from the authorities at the Head office in Techiman which is against the operational procedures of the plaintiff institution. P.W.1 said when he received the report from P.W.2 he personally invited 1st defendant and questioned him about the shortages and the unauthorized loan he granted but 1st defendant could not give any justifiable explanation. P.W.1 said he asked 1st defendant to bring the loan form of the said Duako Ebei and 1st defendant obliged. That he then queried 1st defendant but his answer to the query was unsatisfactory so he (P.W.1) he interdicted him (D1). P.W.1 tendered a copy of the query letter and the letter of interdiction. That the auditors after their audit detected that cash the sum of GH₵112,482.73 could not be accounted for. That further audit also revealed that an amount of GH₵17,595.00 which was to be remitted to the Wenchi Agency was not done. That is also found that cash of 6 GH₵6,280.00 which also to be remitted to the Head office was not done. P.W.1 when he invited 1st defendant and confronted him (D1) he admitted same. P.W.1 said he then informed the Board of Directors about the report and the Board directed him (P.W.1) to arrange a meeting with 1st defendant. that at the said meeting with the Board, 1st defendant came with his uncle (D2) where 1st defendant accepted liability for the embezzlement and together with 2nd defendant they pleaded for a month to organize themselves and pay part of the money and the rest paid later. That the board accepted the plea but directed that they make a down payment of half of the amount embezzled and the restpaid in 24months. That the defendantsfailed topay. The second witness for the plaintiff (P.W.2) was Mary Kumah. She said she lives in Techiman and is the accounts manager with the plaintiff institution as well as the Supervising managerfor the Banda Nkwanta Agency ofthe plaintiff company. That she knows 1st defendant and 2nd defendant. That 2nd defendant is the uncle of the 1st defendant. that she was employed with the plaintiff institution in the 2002 and she has since been working with them. That in June,2020 she went to the Banda Nkwanta branch on her routine internal audit of the books. She discovered some anomalies and queried 1st defendant. A copy of the query letter tendered and marked ‘G’. P.W.2 said in August,2020 she conducted another audit at the same Banda Nkwanta Agency and discovered a shortage of GH₵20,500.00 as the cash in hand did not reconcile with the cash recorded in the books. P.W.2 said she also discover from the Computer Software 7 that on 3rd August,2020 a loan of GH₵30,000.00 was given out without any records to evidence same. That questioned the cashier and she said it was the branch manager (D1) who gave out the money. That further deducting of the records on inter branch transfers also revealed that an amount of GH₵17,595.00 which was to be remitted to the Wenchi Agency was not done. Again an amount of GH₵6,280.00 which was also to be remitted to the Techiman branch was not also done. P.W.2, said she submitted a report to the General Manager who then promised to act on same.P.W.2 said that is what she knows. The third and final witness for the plaintiff (P.W.3) was one Mariama Musah she said she lives at Banda Nkwanta in the Savana Region. That she knows 1st defendant as the branch manager for the plaintiff institution. P.W.3 said she is also the cashier of the same Banda Nkwanta Agency of the plaintiff institution. P.W.3 said she was employed by the plaintiff institution in 2015 and posted to the Banda Nkwanta Agency of the plaintiff institution as cashier. That her main duties were to receive deposits from customers, then make withdrawals and also do mobile money withdrawals. That between the 27th and 28th of July,2020 she (P.W.3) fell ill and did not go to work. When she reported for work later on the 29th of July,2020 she detected a shortage of GH₵20,500.00 in her e-cash mobile money account. She then enquired from 1st defendant the reason for the shortage that 1stdefendant said he used that amount to pay the withdrawals of customers and that 1st defendant said he informed the General Manager and he told him he will send the money through mobile money transfer. Then 8 in August,2020 P.W.2 came for her routine audit. When P.W.2 asked her (P.W.3) for the cash in hand she said it was GH₵15,000.00 P.W.3 then took the books to check. After checking the books P.W.2 detected that the cash in hand should have been GH₵45,000.00and notGH₵15,000.00. This means therewas ashortfall ofGH₵30,000.00. That later P.W.2 told her she had submitted the audit report to the General Manager for action. P.W.3said thatis what she knows. In their evidence the 1st defendant (D1) told the court he is Dompeh David and that he is currently unemployed and lives at Kintampo. That he knows the plaintiff institution. That he (D1) used to be an accounts officer for the plaintiff institution at the Banda- Nkwanta branch until he was interdicted by the plaintiff in the year 2020. 1st defendant said he knows the 2nd defendant (D2) who is his uncle. 1st defendant said he never misappropriated any money of the plaintiff whiles he was the accounts officer. That he is not liable to the plaintiff for the reliefs sought. That the plaintiff’s action is scandalous and vexations and same be dismissed. That the plaintiff is not entitle to the reliefs. The first defendant (D1) did notcall any witness. In his evidence in chief the 2nd defendant (D2) also told the court he is Seth Donkor and that he is a carpenter and lives in Techiman. That he knows the plaintiff herein as well as the 1st defendant. that the 1st defendant used to work for the plaintiff institution as an account officer at the Banda-Nkwanta Branch until he (D1) was interdicted by the 9 plaintiff. That the 1st defendant is his (D2) nephew. That at the time plaintiff employed the1stdefendant he was working in the VoltaRegionfor aconstruction company. That it was only when he came back to Techiman that 1st defendant informed him (D2) of his employment with the plaintiff institution. That he could not have signed as a guarantor for the 1st defendant when the plaintiff employed 1st defendant. that he never signed any document to that effect. That he is not liable to the plaintiff as per the reliefs endorsedin their writ. The 2nd defendant (D2) did not callany witness. Having careful evaluated all the evidence it is important to observe that the plaintiff contended that the 1st defendant herein Dompeh David was employed by the plaintiff institution in the year 2016 as an assistant mobile banking coordinator and he was to serve an initial probation period of 6months at their Techiman Branch . this was evidence by Exhibit ‘A’ and which said assertion the 1st defendant never denied. Indeed the 1st and 2nd defendants both alluded to the said fact that the plaintiff institution employed the 1st defendant and in whose employment the 1st defendant remained until his interdiction. Again, the evidence of the plaintiff established that after the 1st defendant served his 6months probation he was then reassigned to the Banda Nkwanta Agency of the plaintiff institution as the Supervising branch manager. This was after a brief assignment at the main Techiman office as a mobile banking coordinator and mobile banking auditor. The plaintiff supported this with Exhibits ‘B’ and ‘C’ which are the 10 reassignment letters written to the 1st defendant for those positions. These were corroborated by all the three plaintiff witnesses who testified before this with P.W.3, Mariama Musah having stated that she worked directly as a cashier under the 1st defendant at the Banda-Nkwanta Agency of the plaintiff institution. Indeed, the defendants both noted that the 1st defendant worked for the plaintiff institution until his interdiction with the second defendant starting categorically in paragraph 2 of his witness statement (now his evidence) that the plaintiff institution employed the 1st defendant as an accounts officer at their Banda Nkwanta Agency. With all these facts therefore, the plaintiff has clearly established that the 1st defendant was in the employment of the plaintiff institution from the year 2016 when he was employed until inhis (D1) interdictionin theyear2020as evidenced by Exhibit ‘D’. It is also important to note that the plaintiff told the court for the period that the 1st defendant worked at the Banda Nkwanta Agency of the plaintiff institution, some routine inspections were conducted into the books at the Agency and that led to a discovery of various sums of money having been misappropriated as same could not be accounted for. That an audit conduct into the books of the Banda Nkwanta Agency revealed that an amount of GH₵112,482.73 cash could be accounted for. That another cash sum of GH₵17,595.00 which was to remitted to the Wenchi Agency from the Banda Nkwanta branch was not done and the said cash could not be traced. That internal auditors of the plaintiff institution also discovered that a cash sum of GH₵6,280.00which was to be transferred to the main branch in Techiman was not done 11 and same could not also be accounted for. All these under the supervision and stewardship of the 1st defendant as the supervising manager of the Banda Nkwanta Agency. This was corroborated again by all three witnesses of the plaintiff with the 2nd defendant witness (P.W.2) Mary Kuma having told this court that her duties as supervising manager with oversight for the Banda Nkwanta Agency. That she went to the branch on her routine visits to check the books and there she discovered shortage of various sums of money as in the mobile money -E- cash account and also the discrepancies in the cash balances and the recorded balances in the books. P.W.2 said she then submitted a report to the general manager and that cumulated into an external audit of the Banda Nkwanta Agency books leading to the discovery of the total sum of GH₵136,357.73. This was equally confirmed by P.W.1 and P.W.3, P.W.3 noted that as the cashier for the same Banda Nkwanta Agency she fell sick and did not come to work for 2 days ie, 27th and 28th of July,2020. That when she resumed work on the 29th of July,2020 she detected that an amount of GH₵20,000.00 had been withdrawn from the mobile money -E- cash account in her absence. That 1st defendant admitted that he had taken the money to meet some demands from customers and that he sought approval from the general manager but that turned out to be inaccurate as the general manager was unaware. This sum is part ofthe totalofGH₵136,357.73theplaintiff claims. 12 It has again been observed by court that inspite ofthe denial by the 1st defendant that he did not misappropriate the stated sum of money belonging to the plaintiff institution, and who is the 1st defendant’s former employer, the plaintiff has told this court that after the discovery of the misappropriation, as per the various audits conducted at the Banda Nkwanta Agency, the 1st defendant was invited to meeting with the Board of the plaintiff institution and which said meeting took place on the 18th day of November,2020 with the 1st defendant and his uncle, Seth Donkor in attendance. This the plaintiff substantiated with the minutes of the said meeting which was admitted in Evidence and Marked as Exhibit ‘E’. And it must be stated that the defendants never raised any objectiontothe tendering ofthe said Exhibit ‘E’. It is clear from the content of Exhibit ‘E’ that the issue about the money in dispute now was discussed at the said meeting of the board with various proposal made from the defendants and the Board chairman as to how the money could be repaid by the 1st defendant. Indeed, it must be noted that there is nowhere in Exhibit ‘E’ has it been captured that the 1st defendant or the defendants for that matter denied any liability of the said amount of money. It is therefore strange that the 1st defendant will tell this court that he doesnotowe the plaintiffany money. Ontheclaim by the plaintiff herein against the 2nddefendant SethDonkorwho is said to be the uncle of the 1st defendant, it must be stated that the plaintiff proceeded against 13 the two jointly and severally with the legal effect being that the 2nd defendant is being held for the recovery of the stated amount together with the 1st defendant who is his nephew. This ought to have been proved or established by the plaintiff per evidence. However no evidence has been led before this court to establish the fact that the 2nd defendant, Seth Donkor either at the time of the employment of the 1st defendant or during the meeting with the Board of the plaintiff institution signed or executed any document of guarantor ship for the engagement of the 1st defendant or for any future liabilities. And I must state in very clear terms that I have carefully read the entire Exhibit ‘E’ (The minutes of the Board meeting of 18th November,2020) and nowhere has it been stated or discussed that the 2nd defendant was a guarantor for the 1st defendant. I must state that the only place the name of the second defendant has been captured in Exhibit ‘E’ is quoted below: “David Dompeh, a former staff member of the Banda Nkwanta Branch came in with an uncle who resides in a town close to Salaga as his guarantor and witness. The uncle Mr. Seth Donkor and David Dompeh joined the meeting at about 12:15pm”. So was the 2nd defendant at the meeting as a witness or a guarantor? And if he was there as a guarantor for the 1st defendant, what is the prove of his guarantorship? Did he execute any document to evidence that? Clearly my understanding of the two terminologies is not in doubt and they do not mean one and thesame thing. They two also have separate legal quotations. So when the minutes captured that Seth Donkor came to the meeting as guarantor and witness. I do not know what that meant. 14 To guarantee means to give an undertaking for the assumption of the liabilities of another in an event of adefault on that other personspart. So why is the undertaking or the evidence of it, that the 2nd defendant gave for the 1st defendant? That has not been provided. Finally, it is important to observe that the employment relationship between the 1st defendant, David Dompeh and the plaintiff institution span the period 2016 up till 2020 and it was during this time that the moneyin question could notbe accounted for. There is therefore no doubt that this money was under the steward ship of the 1st defendant asthe supervising branch managerofthe Banda Nkwantabranch. Fromthe evidence thereforeI found the following asfacts; (1) That the 1st defendant, David Dompeh was in the employment of the plaintiff institutionforthe period 2016 and 2020when he was indicted; (2) That during this period and after serving his probation period of 6months, the 1st defendant was sent to the Banda Nkwanta branch of the plaintiff institution as a supervising branch manager. (3) That it was during this period of the stay of the 1st defendant at the said branch thatthe GH₵136,357.73couldnot be accounted for. (4) That the 1st defendant admitted liability for the stated sum of money which belongto thecustomers oftheplaintiff institution. 15 (5) That the 2nd defendant never guaranteed or provided any guarantorship for the liabilitiesor default ofthe1stdefendant who ishis nephew. In a civil trial the burden of proof is on the party who in his pleadings raise issues that are essential to the success of their case assume the onus of proof. This is a general legal principle on the burden in civil trials as was decided in the case of Faibi Vs State Hotels Corp{1968} GLR, 176. This principle is founded on the provisions of section 11 (4) of the Evidence Act 1975 (Act 323)which provides that; “ In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that onalltheevidence areasonable mind could conclude that the existence ofthefact was more probable thanits non-existence”. The provision as stated above imposes a burden on the party laying the claim to produce sufficient evidence to make out a claim on a preponderance of probabilities as provided in Section12(1) ofAct323. Section 12 (1) provides that “Except as otherwise provided by law, the burden of persuasionrequires aproofby the preponderance ofprobabilities”. This persuasive burden as provided for in section 12 (1) of Act 323 is explained further in Section 12 (2) to mean the degree of certainty of belief in the mind of the court by 16 which the court is convinced that the existence of the fact was more probable than tis non-existence”. It is therefore trite leaning that in civil trials, the standard of proof is on the preponderance of probabilities. That is to say, a party has to win on the merits or strengthoftheir case. On the claim against the 2nd defendant herein, the plaintiff’s contended that the 2nd defendant guaranteed or provided guarantorship for the 1st defendant who is the nephew . it is thus instructive to state that even though the imposes liabilities on guarantor in an even of any default by the persons for who they have provided the guarantee, in this instant case, it is the view of this court that no evidence has been led by the plaintiffto establishthe claim. In the case of NDK Financial Services Ltd. Vs Ahaman Enterprises Ltd {2013} 60 GMJ 163 at 181 the court held that “ The guarantor becomes liable for the debt or default of another”. This burden on the plaintiff relative to the 2nd defendant has not been discharged. Upon a careful consideration of the evidence as led before this court and the law as stated above, it is my valued conclusion that the plaintiff herein has proved his claims against the 1st defendant Dompeh David and Judgment is accordingly entered for the plaintiff onallthe reliefs against the 1stdefendant. 17 The plaintiff’s claim against the 2nd defendant as a supposed guarantor has however failed and same is dismissed. The reasonsfor theaboveconclusion include; (1) That the plaintiff institution employed the 1st defendant subsequently posted him tomanage their branch atBanda Nkwanta assupervising branch manager; (2) That the 1st defendant being in charge of the said branch for the stated period failed toaccount the cash sum claimby the plaintiff herein. (3) That this misappropriation and/or embezzlement was uncovered after an audit ofthe booksofthebranch. (4) That the 2nd defendant never provided any guarantee for the 1st defendant either at the time of his (D1) employment or even after the misappropriation was discovered. (5) That the plaintiff proved his claim against the 1st defendant on all the claims but failed to do so against the 2nd defendant as required by law. The second defendant cantherefore not be jointlyand severallyliable with the1stdefendant. The following ordersare accordingly made; (1) The 1st defendant herein is hereby ordered to pay the said cash sum of GH₵136,357.73totheplaintiff herein. (2) It is also ordered that interest be calculated at the current Bank of Ghana rate, on thestated sum ofGH₵136,357.73 fromAugust,2020 till date offinal payment. 18 (3) An amount of GH₵5,000.00 is awarded to the plaintiff General damages against the1stdefendant. (4) A further GH₵15,000.00 is awarded as cost to the plaintiff and against the 1st defendant forthe plaintiff. Counsel  Mr.Simon AbleduEsq. forthe plaintiff.  Mr.Moses KofiObahEsq. forthe defendant ……………SGD…………… H/W ISSAHABDUL-WAHAB (MAGISTRATE) 19