IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
AMPOFO TWUMASI ANKRAH - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES - (Defendants)
DATE: 13TH MARCH, 2015
SUIT NO: BFS/116/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ALFRED ANIM QUARSHIE FOR THE PLAINTIFF
KWASI ADU- MANTE FOR THE DEFENDANT
The Plaintiff in this suit commenced an action against the Defendant for the recovery of the sum of GH¢111,500.00 and interest thereon.
It is the Plaintiff’s case that the amount being claimed represents the total investment deposits which he made with the Defendant financial institution, but the Defendant has refused to honour his requests for the withdrawal of the same.
The Defendant’s case is that the Plaintiff has never been its customer and the company does not owe him in any way.
The main issue for determination is whether or not the Defendant Financial Institution is indebted to the Plaintiff in the sum of GH¢111,500.00? To resolve this issue effectively, the court must first determine whether the Plaintiff invested or deposited any money in the Defendant Company and second, whether the Plaintiff is, or was, a customer of the Defendant.
Counsel for the Defendant who was present when a date was fixed for the trial to commence, failed to attend court on the scheduled date. Thus, the Plaintiff was allowed to proof his case under Order 36 rule (1) (2) (a) of the High Court (Civil Procedure) Rules, 2004 C.I. 47. It reads:
Rule (1) (2) where an action is called for trial and a party fails to attend, the trial judge may:
Where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
It is the duty of the Plaintiff to prove his case to the required standard in civil suits. That is, by the preponderance of the probabilities. See sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. The fact that the Defendant elected not to participate in this trial does not take away the Plaintiff’s burden of proof.
A case in point is Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at 884 where the court held as follows (holding 5):
“ It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance 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 proving his case, the Plaintiff led oral evidence and also relied on documentary evidence. He testified that he has had some financial dealings with the Defendant which takes deposits and pay interest on the same. Specifically, he deposited two amounts with the Defendant financial institution:
GH¢100,000.00 and (ii) GH¢1,000.00. As regards the GH¢100,000.00 deposit which he invested for
91 days, the Plaintiff said the applicable interest rate was 42% per annum or 10.5% for the 91 days. Upon maturity of the investment, the Plaintiff said the Defendant failed to pay back his money together with the accrued interest. He supported his oral evidence with two deposit slips (exhibits A and A1); and two investment certificates (exhibits B and B1).Concluding, the Plaintiff said the practice of the Defendant is to take back the investment certificates when they pay back the money invested. Thus, in so far as the investment certificates are in his possession, the Defendant cannot be said to have paid him.
PW1, Kwasi Akomeah Kyeremateng, identified himself as a friend of the Plaintiff. Per his evidence, he introduced the Plaintiff to the Defendant financial institution and he was present when the Plaintiff issued a Ghana Commercial Bank cheque in the sum of GH¢100,000.00 which was received by one Cynthia Akuamoah Boateng on behalf of the Defendant Company. PW1 also corroborated the Plaintiff’s testimony that the Defendant failed to pay back the Plaintiff’s money and the accrued interest on the 2nd maturity date. He further indicated that the Defendant encouraged the Plaintiff to roll over his investment in view of the Defendant’s financial challenges. Having done that, the Defendant could still not pay back the Plaintiff’s money when the investment matured. Concluding, PW1 told the court that in March, 2014, the Defendant convened a meeting which he attended with the Plaintiff. Although the Managing Director of the Defendant was present at this meeting, he failed to pay back the Plaintiff’s money.
I will at this point analyze the evidence on record. First, I will comment on the exhibit A series. Both documents are Pay-in Slips bearing the Defendant’s name and Logo. These documents bear account numbers, which on their face, were assigned by the Defendant to the Plaintiff. It can be reasonably inferred from exhibits A and A1 that the Plaintiff deposited GH¢100,000.00 and GH¢1,000.00 with the Defendant on 13/09/13 and 03/12/2013 respectively. The exhibit B series also confirm that the Plaintiff invested GH¢100,000.00 on 20/03/2014 at the rate of 10.5% for a period of 91 days. From exhibit B, the total amount payable on the due date of 21/06/2014 is GH¢10,500.00. The same cannot be said of exhibit B1. Although the amount invested on 23/12/2013 was GH¢1000.00 for a period of 155 days which was due on 24/05/2014, no interest rate was indicated on the investment certificate.
On the face of the document, the interest is rate is written as 0.0%. The total payable is also GH¢1000.00 just like the amount invested. These documents are on the Defendant’s letterhead, signed and stamped by an authorized officer of the Defendant. On the basis of exhibits A and B series which confirm the oral evidence on record, I find that the Plaintiff did deposit and later invested a total amount of GH¢101,000.00 with the Defendant on 23/12/ 2013 and 20/03/2014.
Is the Plaintiff a customer of the Defendant financial institution? Generally, a person whose money has been accepted by a bank to be paid back on demand is a customer of the Bank. The duration is immaterial, but, there must be a meeting of the minds.
In Commissioner of Taxation v English, Scottish and Australian Bank Ltd (1920) AC 683, a cheque payable to the Commissioners of Taxation, was taken from their premises. The thief opened an account with the defendant bank and paid the cheque into the same. One of the questions which arose in an action for conversion brought by the Commissioners of Taxation as true owners of the cheque against the collecting Bank was whether the rogue had become that bank’s customer by reason of the single transaction involved. Lord Dunedin observed at page 687 thus:
“The word ‘customer’ signifies a relationship in which duration is not of the essence. A person whose money has been accepted by a bank on a footing that they undertake to honour cheques up to the amount standing to his credit is … a customer of the bank… irrespective of whether his connection is of short or long standing…”
Another case worth considering is Woods v Martins Bank Ltd (1959) 1 QB 55. In that case, the claimant, a young man without business experience, who had inherited a considerable amount of money, was given careless advice as regards certain investments by the branch manager of the defendant bank. At the time the advice was given, the claimant did not have an account with the bank. But, when he decided to act on the advice, he asked that the balance of an account, maintained with another financial institution, be collected by the defendant bank. In an action brought by him against the bank to recover the amount lost in the investment involved, a question arose as to whether the claimant had become the bank’s customer at the time at which the advice was given. Salmon J decided that the relationship of banker and customer had come into existence when the branch manager agreed to accept the claimant’s instruction to open an account in his name.
There are exceptions to this general position. For instance, when an account is opened in a person’s name without his authority or consent, that person cannot be described as a customer of the bank. Thus, in Marfani & Co Ltd v Midland Bank Ltd (1968) 1 WLR 956, a rogue, whose name was “K”, opened an account in the name of a wealthy business man by name ‘Eliaszade’. Eliaszade was a client of “K’s” employers. In an action for conversion, brought by K’s employers in respect of the cheque paid by K into the “Eliaszade” account, the court of appeal held that the bank’s customer was K and not the genuine Eliaszade, who had never intended to enter into a banker-customer relationship with the defendant bank.
Similarly, in Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd (1966) 2 Lloyds Rep. 373, ‘A’ forged a signature and opened an account in ‘B’s’ name without ‘B’s authority. The court held that no relationship of a banker and customer came into existence between the bank and ‘B’.
To avoid such fraudulent transactions, there is the need for a Bank or a financial institution to know its customers (KYC). In Ghana, this is mandatory for all customers of Banks and other non-bank financial institutions. The Non-Bank Financial Institution Act, 2008, Act 774 is relevant for the purpose of the case. Section 42 of the Act reads:
“A non-bank financial institution shall
(a) demand proof of and record the identity of its clients or customers, when establishing business relations or conducting transactions, in particular;
(i) opening of accounts or issuing of passbooks where applicable
(ii) entering into fiduciary transactions, or
(iii) performing large cash transactions,
The Plaintiff before me has clearly identified himself on oath. His identity and place of work have been confirmed by PW1. He has also given his residential address to the court on oath. I have no doubt in my mind that the Plaintiff before me is the same person who deposited money with the Defendant as per the exhibit A series, and later invested the same with the defendant as in the exhibit B series. Accounts were created in his name for the purpose of these transactions. It was the duty of the Defendant to ensure that the account opened in the name of the Plaintiff is “KYC” compliant. With the over whelming evidence on record, I find that the Plaintiff became a customer of the defendant non-bank financial institution from the day he deposited money into an account created in his name.
Does the Defendant owe the Plaintiff? This is the next question to decide. On the face of exhibit B, the amount payable on the due date of 21/06/2014 is Gh¢110,500.00. It is further indicated on the said investment certificate as follows:
“PLEASE: ONCE AN AMOUNT IS INVESTED, TERMINATION CANNOT BE MADE. UPON NOTICE, THREE (3) DAYS SHOULD BE GIVEN FOR REDEMTION OF INVESTMENT”.
In respect of exhibit B1, the notice is as follows:
“3% PENALTY WILL BE CHARGED IN CASE THIS INVESTMENT IS TERMINATED BEFORE THE MATURITY DATE”
From the foregoing, it can be reasonably inferred that the Defendant intended to pay back the Plaintiff’s money upon maturity of the investments. I accept the Plaintiff’s testimony that the Defendant has refused to pay him despite persistent demands, as credible. Therefore, I conclude that the Plaintiff is entitled to recover the amounts so invested as per exhibits B and B1 from the Defendant.
As regards interest, the Defendant has held on to the Plaintiff’s money from the maturity dates and has had use of the same. In the circumstance, the Defendant is required to pay interest to the Plaintiff. See Akoto v Gyamfi Addo (2005-2006) SCGLR 1018. From the face of exhibits B and B1, the Plaintiff did not intend to roll over his investments with the Defendant indefinitely. In the circumstance, the agreed interest rate in exhibit B cannot apply beyond the 21/06/2014 due date. In respect of the investment evidenced by exhibit B1, the interest rate was not indicated on the face of the document. Going by the Court (Award of Interest and post Judgment Interest) Rules, 2005 C.I. 52, the defendant is liable to pay interest on the sum of GH¢110,500.00 and GH¢1000.00 at the prevailing bank rate.
Accordingly, judgment is entered against the Defendant in the sum of GH¢110,500.00 together with interest from 22/06/2014 till date of final payment; and GH¢1000.00 plus interest at the prevailing bank rate from 25/05/2014 till date of final payment.
Having taken into consideration the provisions as regards the award of cost under Order 74 of C.I. 47, I award cost of GH¢ 8,000.00 against the Defendant in favour of the Plaintiff.