KUMASI - A.D 2015

DATE:  8TH JUNE, 2015
SUIT NO:  BFS/117/15

The Plaintiff in his action is claiming the recovery of the sum of Fifty-Six Thousand, Seven Hundred and Fifty Ghana Cedis (GH ¢56,750.00) together with interest from the Defendant.


The Plaintiff's case is that he invested an amount of money with the Defendant with Account Reference Number 20-240100503-01 but the Defendant has refused to pay the amount due on the maturity date which fell on 02/04/2014.


The Defendant put up its custom defence that the Plaintiff has never been its customer and as such, it is not indebted to him in any way.


The issues for consideration in this trial are set down below:


Whether or not the Plaintiff invested an amount of GH¢55, 250.00 in the Defendant Financial Institution?


Whether or not the Plaintiff is entitled to his claim.


As the case is in all civil suits, the evidential burden as well as the burden of persuasion of the first issue rests on the Plaintiff and he must prove his claim on the balance of probabilities in terms of sections 11(4) and 12 of the Evidence Act, 1975 N.R.C.D. 323 as follows:


Section 11 (4):


" In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-  existence."


Section 12


(1): “Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of probabilities."

(2):" Preponderance of probabilities 'means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence".


Having assumed this burden, the Plaintiff gave evidence that 09/12/2013, he invested an amount of GH¢1,500.00 with the Defendant. Subsequently, he invested GH¢50,000.00 with the same Defendant Company and was issued with investment certificates. As regards the first investment, the Plaintiff said the maturity date was 10/05/2014. He gave the second maturity date for the GH¢ 50,000.00 investment as 02/07/2014. According to him, both investments attracted an agreed interest of 10.5% and the total amount payable to him inclusive of interest is GH¢ 56, 750.00. He tendered in evidence two investment certificates in support of his claims. These are exhibits A and A1. The Plaintiff further testified that on the maturity dates, he went to the Defendant who explained that the Company was having some challenges and would invite them to a meeting but after several demands, the Defendant has refused to pay his money. Reacting to the Defendant's statement of defence, the Plaintiff said it will be strange for him to have exhibits A and A1 in the absence of any dealings with the Defendant.


In cross-examination, counsel for the Defendant sought discredit the Plaintiff's evidence that he is a customer of the Defendant Company. He suggested to him that since the Defendant has not assigned any account number to the Plaintiff, he is not a customer of the said institution. Counsel also drew the Plaintiff's attention to the fact that exhibits A and A1 are on the letterheads of Noble Dream Financial services but the stamp is Noble Dream Micro Finance and put to the witness that Noble Bream Financial Services does not use as its official stamp Noble Dream Micro Finance. The Plaintiff however maintained that he did these transactions at the defendant's premises which was open to the public and that it was the Defendant's Accountant who stamped exhibits A and A1.As to be expected, the Defendant challenged the Plaintiff's answer but the Plaintiff insisted that exhibits A and A1 were issued to him at the Defendant's official business premises.


The Plaintiff gave evidence on 30/03/2015 and closed his case on the same date. Counsel for the Defendant sought an adjournment to enable a witness who was to testify on Defendant's behalf to come to court. Thus, the court adjourned the case to 21/04/2015. The case was recalled at 11:10am on that day but counsel for the Defendant and the witness who was to testify were conspicuously absent. In the circumstance, the court concluded that the Defendant did not intend to be heard. Accordingly, a date was set for judgment.


I find from exhibit A and A1 that the Plaintiff invested GH¢1,500.00 and GH¢50,000.00 with the Defendant on 09/12/2013 and 01/04/2014 respectively. On the face of these documents, the maturity dates for the said investments were 10/05/2014 and 02/07/2014. Looking at the respective investment dates as well as the maturity dates, it cannot be said that the Plaintiff had only one investment with the Defendant. However, the two investments were maintained under the same Reference Number- 20-240100503- 01. There is no doubt that it was the Defendant who assigned this number to denote the Plaintiff's investments. In both exhibits A and A1, the Defendant provided the due date. In relation to exhibit A, the amount invested could to be terminated before the maturity date. And, even upon maturity, three days notice had to be given before redemption. In respect of exhibit A1, the Defendant, Noble Dream Financial Services added a clause that 3% penalty will be charged in case the investment was terminated before the maturity date. So, in both instances, it canbe reasonably inferred that the Defendant accepted the Plaintiff's money and undertook to pay back same on the due dates. Having weighed the evidence on the balance of probabilities, I find that the Plaintiff's assertion that he dealt with the Defendant and is therefore a customer of the Defendant is more probable than not.


I now turn to the Defendant's counsel 's contention that the official stamp on exhibits A and A1 which bears the name " Noble Dream Micro Finance", could not have been an act of Noble Dream Financial Service, the Defendant herein.


In paragraph 2 of the Plaintiff's statement of claim filed on 17/11/2014, the Plaintiff averred that " The Defendant is a Financial Institution duly registered under the Laws of Ghana with a branch at Oforikrom." This was denied by the Defendant but the Plaintiff has been able to prove to the requisite degree that the Defendant is a Non-Bank Deposit taking Financial Institution with an office at Oforikrom, Kumasi; that an officer of the Defendant acknowledged receipt of the amount he deposited or invested with the Defendant for a fixed period by signing the certificates of investment and that it is the said officer who stamped the investment certificates. If the Defendant has so permitted such a person to act in the manner he did, can the Defendant distance itself from the acts of the said officer whose acts fall within the objects of the Defendant's business? The answer can be found in Section 140 of the Company's Act, 1963 Act 179 as follows:


Acts of officers or agents


(1) Except as provided in section 139, the acts of an officer or agent of a company are not the acts of the company, unless,

(a) the company, acting through its members in general meeting, board of directors, or managing director, has expressly or impliedly authorized that officer or agent to act in the matter; or

(b) the company, acting under paragraph (a) has represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to a person who has entered into the transaction in reliance on that representation, unless that person had actual knowledge that the officer or agent did not have authority or unless, having regard to the position with, or relationship to, the company, that person ought to have known of the absence of authority.


Looking at exhibits A and A1, an ordinary person is unlikely to notice the difference in the name on the letter Head and that on the stamp as they all begin with "Noble Dream..." and the officer using the said stamp operated from a registered office of Noble Dream Financial Services. I accept the Plaintiff's explanation that it was an officer of the Defendant who stamped exhibits A and A1 in the premises of Noble Dream Financial Services. Being an officer of the Defendant Non- Bank Financial Institution working from its business premises, the Plaintiff was entitled to assume that his actions were regular. In terms of section 140 (1) (b) of Act 179, the Defendant Company is bound by the official acts of the accountant who signed and stamped exhibits A and A1. See also Commodore v Fruit Supply (Gh) Ltd (1977) 1 GLR 241, CA, where the rule in Turquands case was applied.


Is the Plaintiff entitled to his claims against the Defendant? From the endorsement on the Plaintiff's amended statement of claim, the amount he seeks to recover from the Defendant is GH¢ 56, 750.00. This is also evidenced by exhibits A and A1.


Accordingly, judgment is entered for the Plaintiff in the sum of GH¢ 56, 750.00.


Having failed to pay the Plaintiff's money since the maturity date of 02/07/2014, I find that the Defendant has denied the Plaintiff the use of his money. The Plaintiff is therefore entitled to interest on the sum of GH¢56, 750.00 at the Prevailing Bank Rate, and at simple interest, from 03/07/2014 till date of final payment in consonance with the Court (Award of Interest and post Judgment Interest) Rules, 2005 C.I. 52.


Having reviewed the provisions of Order 74 of C.I. 47, I award cost of GH¢ 5,000.00 against the Defendant in favour of the Plaintiff.