KENNETH NANKARA & 3 ORS -(Plaintiff)
NOBLE DREAM MICRO FINANCE LIMITED - (Defendant)
DATE: 19TH APRIL, 2016
SUIT NO: BFS/231/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
AKUA ADOMA ADDAI FOR WILLIAM KUSI FOR PLAINTIFFS
KWASI ADU MANTE FOR DEFENDANT
The Four Plaintiffs herein who described themselves as mechanics at Asafo, Kumasi have sued the Defendant Micro Finance Company in respect of unpaid investments made in the Defendant Company. Cumulatively, they are claiming the sum of Nineteen Thousand, Four Hundred and Twenty-Six Ghana Cedis, Fifty Pesewas (GH¢19, 426.50), interest thereon and any further order(s) this Honourable Court may deem fit.
In their statement of claim filed on 30/03/15 together with the writ of summons, each Plaintiff indicated the amount he invested and the agreed interest as well as the maturity date. They further averred that the Defendant has failed to repay their respective monies and the accrued interest after the maturity dates.
On 17/10/2015, Counsel for the Defendant was served with a hearing notice to attend court on 07/10/2015 for directions to be given. He however failed to come to court and no reason(s) were given for his absence. Accordingly, the court proceeded to give directions as to the filing of witness statements on 07/10/2015.
The case was adjourned to 20/11/2015 for a case management conference and on 14/10/2015, a hearing notice was duly served on Plaintiff's lawyer in Accra. Subsequent to that, the witness statements of the Plaintiffs were served on him.
Since the Defendant was not minded to file its witness statement and would also not come to court, the defence was duly struck out on 16/02/2016. After a series of adjournments, the court ordered a hearing notice to be served on Counsel for the Defendant for hearing to commence on 14/03/2016. Counsel was duly served on 08/03/2014 but again, there was a no show so the Plaintiffs were allowed to prove their case. Each of the Plaintiffs relied on his witness statement filed on 02/11/2015 when they mounted the witness box.
According to the 1st Plaintiff, he invested an amount GH¢4, 808.40 for a period of 91 days and was entitled to be paid interest of 25.10% on the amount invested. He further testified that upon maturity, he was to be paid GH¢ 5, 110.13. He tendered exhibit A as an investment certificate evidencing this transaction.
The 1st Plaintiff's exhibit A actually confirms his oral testimony that he invested an amount of GH¢4,808.40 on 27/05/2014 and the interest rate indicated thereon is 25.10% per annum; interest per tenure was GH¢301.73 and the total payable on the due date of 28/08/2014 stood at GH¢ 5,110.13.
Similarly, the 2nd Plaintiff who indicated in his evidence-in-chief that he invested GH¢3,536.00 for a period of 91 days also put in evidence his investment certificate detailing the transaction. Per his investment certificate which was also marked as exhibit A, he put in GH¢3,536.00 at the interest rate of 10.50% per tenure; interest for the 91 days stood at GH¢371.28 and the amount payable on the maturity date of 27/05/2014 was GH¢3,907.28.
In the same way, the 3rd Plaintiff who told the court that his principal amount invested on 17/04/2013 was GH¢4,884.10 with an agreed interest rate of 10.50% for 91 days brought his investment certificate to the attention of the court. And, on the said investment certificate, also marked exhibit A, the interest payable for the 91 days was GH¢ 464.10, bringing the total payable to GH¢4, 884.10.
Even though the 3rd Plaintiff indicated that he invested his money for 91 days effective 17/04/2013, the due date indicated on his investment certificate is 18/07/2014. The 2014 is an obvious error because 91 days from 17/04/2013 will be 18/07/2013. He also said in his evidence-in-chief that the Defendant prevailed on him to roll over his investment and he did roll over the investment for a further 91 days. He did not put in evidence any investment certificate evidencing the 2nd investment. And, his testimony does not also give details of the re-investment. What he has positively proved is the initial investment which according to him has not been repaid together with the accrued interest.
When the 4th Plaintiff took his turn to testify, he said he invested GH¢5,000.00 for 91 days and he was to be paid GH¢5,525.00 at the end of the period. However, all efforts to withdraw the interest and the principal amount have proved futile. His investment certificate, marked exhibit A gives details of the transaction and confirm the testimony of the 4th Plaintiff. Indeed, the interest payable was 10.50% per annum and the due date as per the investment certificate was 05/06/2014.
The main issue for determination is whether the Defendant is indebted to the Plaintiffs in the sum of GH¢19,426.50 and interest thereon. And if so, whether the Plaintiffs are entitled to their claims?
Brobbey JSC in the case of Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003-2004) SCGLR 420 emphasized the legal burden placed on a Plaintiff who comes to court to seek any redress. He stated:
... A litigant who is a defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant ..."
So in the instant case where the Defendant failed to file its witness statement which resulted in the striking out of the defence, the court has just the evidence of the Plaintiffs to consider. That notwithstanding, the Plaintiffs must prove on the balance of probabilities that their respective claims are true. As was Ansah JSC rightly observed in Takoradi Flour Mills v Samir Farris (2005/2006) SCGLR 883 at page 884 (holding 5):
It is sufficient to say that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a balance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict..."
In the case before me, I have scrutinized the evidence adduced by each Plaintiff and the investments which they testified to are more probable than not. I have already commented on the 3rd Plaintiff's investment and I find that apart from the initial investment for 91 days, there is no credible proof that the same was rolled over for a further 91 days. I conclude that each Plaintiff is entitled to be repaid the principal amount invested plus the accrued interest for 91 days when the investments matured.
I must be quick to point out that the interest rate indicated on the respective investment certificate of each party is not applicable after the maturity date in the absence of any agreement to that effect. But, there are compelling reasons to award interest on the amount due after the maturity date which remain unpaid.
First, the Defendant has denied the Plaintiffs of the use of their monies without just cause and on the authority of Akoto v Gyamfi Addo (2005/2006) SCGLR 1018, they are entitled to be paid interest.
Second, if the Plaintiffs had re-invested their monies in other ventures, they would have reaped some benefits. Yet, the Defendant's action has prevented them from "harvesting the accumulated fruits of their trees" To quote Viscount Simon in Riches v Westminster Bank Ltd ( 1947) AC 390 at 398, HL, interest is " the accumulated fruit of a tree which the tree produces regularly until payment". Thus, so long as the Plaintiff's monies remain unpaid, the Defendant will be compelled to pay interest thereon.
Third, the Plaintiffs were driven to have recourse to legal proceedings in order to recover their respective monies from the Defendant. As such, the Defendant who is wrongfully withholding the monies from the Plaintiffs ought to compensate them by way of interest in addition to any other orders to be made by the court. I am highly persuaded by the statement of Lord Herschell in Chatham and Dover Railway Co. v South Eastern Railway Co. (1893) AC 429 to the effect that a Plaintiff who finds himself in the circumstances described above ought to be paid interest and I will apply the principle therein to the facts of the case at hand.
In the absence of any agreement as regards interest rate after the maturity period, the applicable rate of interest will be in accordance with Rules 1 , 2(1) and 4 of the Court (Award of Interest and Post
Judgment Interest) Rules, 2005 C.I. 52.
Accordingly, I enter judgment for each Plaintiff against the Defendant as indicated below:
The sum of GH¢ 5, 110.13 plus interest at the prevailing bank rate from 29/08/2014 till date of delivery of Judgment; and post judgment interest at the same rate from the date of delivery of judgment till date of final payment.
The sum of GH¢ 3, 907.28 together with interest at the prevailing bank rate from 28/05/2014 till date of delivery of judgment; and post judgment interest at the same rate from the date of delivery of judgment to the date of final payment.
The sum of GH¢4,884.10 and interest thereon at the prevailing bank rate from 19/07/2013 till date of delivery of judgment; plus post judgment interest at the same rate from the date of delivery of judgment till date of final payment.
The sum of GH¢5,525.00 plus interest at the prevailing bank rate from 06/06/2014 till date of delivery of judgment and post judgment interest at the same rate from the date of delivery of judgment up to the date of final payment.
For the avoidance of doubt, the Bank of Ghana 91 days Treasury Bill rate is to be used as the prevailing bank rate. I award cost of GH¢ 700.00 in favour of each Plaintiff against the Defendant.
Therefore, the total Judgment debt against the Defendant is GH¢19, 426.50 as endorsed on the writ of summons and the total cost awarded against the Defendant is GH¢ 2,800.00.