IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
CHARLES MENSAH ANSU - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES - (Defendant)
DATE: 3RD JULY, 2015
SUIT NO: BFS/118/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ALFRED ANIM QUARSHIE FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
In this action, the Plaintiff seeks to recover an amount of fifty-five thousand two Hundred and Fifty Ghana Cedis (GH¢ 55, 250,000.00) from the Defendant, the interest thereon and any other order that this court may deem fit.
The Plaintiff's case is that sometime in July 2013, he invested his retirement benefits with the
Defendant and reinvested same twice on the maturity date of 14th April, 2014. He sought to withdraw his investment with the accrued interest at the last maturity date but the Defendant has refused to accede to his request.
As to be expected, the Defendant put up its usual defence that the Plaintiff has never been its customer and there has never been any dealings between them. The Defendant denied owing the Plaintiff.
This court has to determine three issues set for the trial as follows:
Whether or not the Plaintiff is a customer of the Defendant Financial Institution?
Whether or not the Plaintiff invested GH¢55,250.00 in the Defendant's Institution?
Whether or not the Plaintiff is entitled to his claim?
Counsel for the Defendant was in Court on 04/03/2015 when directions were given for the commencement of the trial. He failed to show up in court and a hearing notice was subsequently served on him on through his secretary by name Osei Joseph on 12/05/2015 for the June 15th trial.
Again, both Counsel and the representative of the Defendant were absent even though they had at least one month notice of the trial. The Court had no option than to proceed to hear the Plaintiff's case under Order 36rule 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:
(a) Where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim.
In this case, the Defendant did not have any counterclaim and so the Plaintiff was given the opportunity to prove his case .His testimony was concise. According to the Plaintiff, he invested the sum of GH¢ 50,000.00 with the Defendant on 09/07/2013 for a period of 91 days. Interest due was paid on two occasions and in each case, he rolled over the principal amount. In support of this oral evidence, he tendered the certificate of investment and the deposit slip as exhibits A and A2. Finally, he prayed the Court to assist him to recover the principal amount and the accrued interest to date.
There are a host of judicial precedents on the principle that a party who makes a positive assertion which is denied by his opponent bears the evidential burden as well as the burden of persuasion on that assertion. This being a civil suit, the standard of proof that is required is proof by the preponderance of probabilities as required by sections 11 (4) and 12 of the Evidence Act, 1975 N.R.C.D. 323. Even though the Defendant elected not to participate in this trial, the Plaintiff must still discharge this legal burden. On proof in civil suits, the court in the case of Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at 884 held thus (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.” See also Adwubeng v Domfeh [1996-97] SCGLR 660.
I will proceed to analyze the evidence adduced by the plaintiff and determine whether or not he has succeeded in discharging his burden of proof. Exhibit A 1 is a Pay-in-slip with the Defendant’s name and logo. The account name and number stated therein are Ansu Mensah Charles, 10-050151294 - 01. On the face of this document, the Plaintiff personally deposited an amount of GH¢ 50,000.00 with the Defendant on 09/07/2013. Exhibit A confirms the Plaintiff's story that he reinvested the principal amount on two occasions for a period of 91 days at a time and the last investment was made on 13/01/2014. Again, exhibit A is on the Defendant's letter head with its logo and signed by its authorized officers. It also bears the signature of the Plaintiff.
In my earlier decision in Ampofo Twumasi v Noble Dream Financial Services, (Unreported) Suit No. BFS 116/2015,Commercial Court Kumasi 13/03/2015, I quoted with approval the statement of Lord Dunedin in Commissioner of Taxation v English, Scottish and Australian Bank Ltd (1920) AC 683, 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…”
In the same Ampofo Twumasi case referred to supra, I was so persuaded by the pronouncement of Salmon J in Woods v Martins Bank Ltd (1959) 1 QB 55. In that case, His Lordship 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.
On the evidence before me, I find that the Plaintiff could not have falsified exhibits A and A1. He truly deposited, invested and re-invested the sum of GH¢50,000.00 with the Defendant Non-Bank Financial Institution for a period of 91 days at a time. I also find that the last investment he made was on 13/01/2014 at an interest rate of 10.50%. The maturity date was 14/04/2014 and the amount due was GH¢55, 250.00. There is no evidence that this money has been paid to the Plaintiff. I therefore conclude that the Plaintiff has been a customer of the Defendant Non- Bank Financial Institution since 09/07/2013 and the Defendant is liable to pay back his money together with the accrued interest.
The Defendant's denial that it has not dealt with the Plaintiff in any way is false. Indeed, the Defendant, like all other Non-Bank Financial Institutions, is required to know its customers. This is usually termed "KYC" meaning "Know Your Customer. The statutory backing for this is Section 42 of The Non-Bank Financial Institution Act, 2008, Act 774 and it 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,
Under the circumstance, if the Defendant failed to follow this laid down procedure in dealing with its customers, it cannot be heard to complain about lack of knowledge of its customers.
Is the Plaintiff entitled to interest on the amount claimed and if so at what rate? The sum of GH¢55,250.00 became due on 14/04/2014. There is no agreement between the parties for the Defendant to hold on to this money after that date. The principle for the award of interest has always been that where the Defendant does not have any justification for holding onto the Plaintiff's money, he ought to pay interest. In this case, there is no indication from the evidence adduced by the Plaintiff that the Defendant had any justification for not paying back the amount due. On the authority of Akoto v Gyamfi- Addo (2005-2006) SCGLR 1018 and in accordance with the provisions of rules 1 and 2 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 C.I. 52, I award interest on the sum of GH¢ 55, 250.00 at the prevailing bank rate and at simple interest from 15/04/2014 till date of final payment.
In view of the simplicity of this case and after considering the provisions of Order 74 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 on the award of cost, I hereby award GH¢1,500.00 as cost against the Defendant and in favour of the Plaintiff.