Between the Compagnie Bancaire de l'Afrique de l'Ouest (Cbao) and its client Moustapha Tall, it is the breach of the contract of trust. The merchant took his bank to court for alleged breach of trust.

The shopkeeper Moustapha Tall is reviving. This time, it is on the judicial field. He sued the West African Banking Company (Cbao) Group Attijari Wafa Bank. A bank that he accuses of breach of trust involving the sum of 1,908,700,000 FCfa. It was by way of direct summons that the trader summoned Patrick Mestralet, Director General of the Cbao, and his account manager, Mandiaye Dieng, to the helm of the Criminal Court of Dakar.

In his complaint, he accuses them of having "stolen" from his account number 20136.64935-33, housed in the Cbao Group Attijari Wafa Bank the amount mentioned above. The bank targeted as civilly liable, the justice had set the hearing on May 12, 2020, but, the hearing postponed several times, the magistrate in charge of the case has retained the date of October 13, 2020 for the opening of the proceedings.

79 alleged "fraudulent" withdrawals of 20 million FCfa made

This story is 15 long years old. As part of his activities, Moustapha Tall had approached the Cbao with which the account number 20136.64935-33 was opened. On 6 May 2005, following a precautionary attachment of claims, that account was debited. The seizure was, according to the prosecution, maintained by the Cbao until July 20, 2018, when the release was granted to Moustapha Tall.

However, for 13 consecutive years, Moustapha Tall said "had no information on the movements of the account in general, which had to be provided on a regular basis by account statements to be able to verify the regularity of the transactions". Subsequently, he says he discovers that "in the most total opacity", cash withdrawals that he did not "authorize" were made. From 16 March 2004 to 5 August 2004, 79 withdrawals, sometimes three times a day, of FCfa 20 million were made. The last one, dated 5 August 2004, less important than the others, was 8,706,000 FCfa. Disbursements executed, the summons states, at the time when the applicant was in pre-trial detention in another case concerning him.

Arrested after the Customs report, while he wanted to enter the sugar market, the rice trader-seller accuses the bank "of having acted with full knowledge of the facts to loot the aforementioned account to then want to hide it with the unilateral closure of the account in 2009, while the said account was in a contentious situation with the seizure in progress'. And big was his surprise, when, on July 20, 2018, the bailiff notified him of the release, not being able to return to his funds. Rallying the bank in order to recover the seized amounts, "he will be told that they are no longer in the account. The bankers are asking him to iron."

Moustapha Tall claims 20 billion CFA francs from the Cbao

The following day, the summons reads, "the bank informs the applicant that the said amounts have been credited at the time of closure of the account". The applicant then asked to see the statements. By examining them, "he discovers the pot-aux-roses and the scheme of the Cbao bank which made fraudulent withdrawals from the applicant's account". Considering "these  withdrawals curious, irregular and nebulous, and prefiguring unfair levies", Cbao knows, according to him, "perfectly that as a depositary, it is responsible for the sums of money lodged in the accounts of individuals opened in its books". As a result: "It is required to justify any disputed withdrawal to an account under its responsibility."

To make up for all the damage he suffered, he claimed the sum of 20 billion FCfa as damages. Previously, Mr Tall had, by correspondence dated 16 April 2019, given notice to the Cbao to have to justify the withdrawals made and possibly provide the identity of the beneficiaries of those withdrawals. Moustapha Tall had seized the Ministry of Finance which transmitted the file to the Observatory of the quality of financial services (Oqsf) in order to find an amicable solution to this dispute.

The Cbao dismantles the "allegations" of the trader

In a letter-response addressed to the Oqsf, the Cbao brushes aside the accusations: "Our establishment immediately disputes these allegations, just as it marks its deepest disagreement with the steps of Mr. Tall, both in form and in substance (...) Moustapha Tall's claims are aimed at op erations that date back nearly fifteen (15) years. However, as you know, by hypothesis, the legally provided period for processing and keeping accounting documents, as provided for by the Accounting System of the Organization for Harmonization in Africa, of the Business Law known as "Syscohada" is 10 years (...)"

Continuing, the bank adds: "In this respect and from the strictly legal point of view, no provision imposes on Cbao the obligation to produce documents whose legal retention period has expired (...) In addition, our quality as a Banking Institution subjects us to strict regulations, in particular the scrupulous respect of professional secrecy, established by Article 30 of Law 2008-26 of 28 July 2008. This obligation, to which Cbao is bound, formally prohibits it from communicating personal information to unauthorised bodies, since under Article 53 paragraph 4 of the aforementioned Banking Law of 2008, the only claims derogating from this rule are those emanating from Umoa, the Bceao or the judicial authority acting in criminal proceedings.'