IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
ELIZABETH KAKORAH - (Plaintiff)
NOBLE DREAM MICRO FINANCE - (Defendant)
DATE: 8TH JUNE, 2015
SUIT NO: OCC/300/14
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's case is that she invested an amount of GH¢14,597.00 with the Defendant as a six- month fixed deposit at an interest rate of 18% for the period but the Defendant has not fully paid back her investment and the accrued interest after the maturity date.
The Defendant put up the defence that the Plaintiff has never been its customer and it has never had any dealings whatsoever with her. Hence, the Plaintiff is not entitled to her claim for GH¢11, 224.46.
The issues before this court for determination are as follows:
Whether or not the Plaintiff is a customer of the Defendant Financial Institution?
Whether or not the Plaintiff invested GH¢11,224.46 in the Defendant Institution?
Whether or not the Plaintiff is entitled to her claim?
On 14/04/2015, the Plaintiff gave evidence in court to prove her claims. Her testimony was very concise and it is as follows:
"... I know Noble Dream Micro Finance. I am one of their customers. I invested money at Noble Dream Micro Finance as fixed deposit. The money was GH¢14, 597.00 with interest of 18%. The interest was GH¢2,629.46 summing up to GH¢17,224.46. The Defendant has so far paid GH¢ 6,000.00 out of the investment to me. The first time they gave me GH¢5,000.00 and wrote it on exhibit A (Investment Certificate). The balance now is GH¢11,224.46. This balance has not been paid to me. I have made a demand for it. The defendant's assertion that I am not their customer is not true. It is not true that the Defendant has never had any dealings with me. It is not true that the Defendant is not indebted to me. I am entitled to my claim. I want the court to help me get the rest of my money."
Even though the Defendant had denied having any dealing with the Plaintiff in the statement of Defence filed on 14/11/10, its counsel in cross-examination on 14/04/2015 asked questions which lead to the irresistible conclusion that the parties have had some financial dealings. The relevant portion of the cross-examination is as follows:
Q. How much did you say the Defendant owed you?
A. GH¢11, 224.46.
Q. Is that after the money given to you at Christmas time i.e. on or before
A. When I got there the first time, they gave me GH¢ 1,000.00 and the second was GH¢5, 000.00. The Defendant's representative (Sister Pat) called me and gave me GH¢4000 but I asked her if I should tell me lawyer but she said no. She said after claiming my money, she will collect that GH¢4,000.00 back. That is why I did not say it because she said it is not necessary to tell my lawyer.
Q. As at 24/12/2014, you were owed GH¢7, 224.46?
Q. You were also asked to go for an amount of GH¢6,000.00 from your lawyer this year. Did you go for it?
A. Yes, But my lawyer told me the car was not sold in my name so I cannot collect the money from him and that Noble Dream Micro Finance still owes me.
Q. I am putting it to you that an amount of GH¢6,000.00 was reserved for you because according to your lawyer, you attached the car and not the Plaintiff in Ampofo v Noble Dream?
A. I have not received anything.
Q. How much does the Defendant owe you?
A. If the GH¢4,000 is deducted, it is GH¢7, 224.46.
After the Plaintiff had closed her case, two adjournments were granted at the instance of the Defendant but the Company's representative who was to give evidence never showed up. Counsel for the Defendant did not also appear in court and no reason was given for his absence. Thus, the court fixed a date for judgment after forming the opinion that the Defendant had waived its right to be heard.
As the case is in all civil suits, the court is enjoined to weigh the evidence on record on the balance of probabilities and the party whose case is more favourable gets a deserving verdict. See sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. Again, in the case of Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at page 884 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.”
Under section 11(1) of NRCD 323, the burden of producing evidence is defined thus:
“For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue."
Further in section 14 of NRCD 323, "... a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or the defence he is asserting."
From the issues set down for determination by this court, it appears to me that the Plaintiff bears both the evidential burden as well as the burden of persuasion (unless it is shifted). Indeed, the Supreme Court in Sumaila Bielbiel v Adamu Dramani & AG ( 2012) SCGLR 370 observed that " ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence" The Supreme Court however observed that depending upon the pleadings or what facts are admitted, the evidential burden can move to a defendant. I do not think that in the case before me the evidential burden has shifted onto the Defendant. Thus, it behooves the Plaintiff to discharge the burden of proof placed on her so as to succeed.
From the evidence led by the Plaintiff as well as what transpired during cross-examination, it can be reasonably inferred that the Plaintiff deposited money with the Defendant Company and the Company undertook to pay back her money. Again, "a banker/customer" relationship can be inferred but I must be quick to point out that the Defendant is a Non-Bank Financial Institution. However, the relationship created between the parties herein can be described as such. The Plaintiff's exhibit ‘A’ further confirms her oral evidence that she is a customer of the Defendant and that she invested an amount of GH¢14, 597.00 in the said Company at any agreed rate of 18% for a period of six months. On the face of exhibit A, the interest for the six month period which matured on 31/03/2014 is GH¢2, 627.46. Having proved these facts, the burden of persuasion shifts onto the Defendant to introduce evidence to the contrary but the Defendant elected not to do so by its conduct. I therefore find that the Plaintiff has succeeded in proving on the balance of probabilities that she is a customer of the Defendant and that she did invest the sum of GH¢14, 597.00 for a fixed period of six months and at an agreed interest rate of 18% with the said Defendant Company.
Is the Plaintiff entitle to her claim for GH¢11, 224.46 as endorsed on the writ of summons? Going back to the Plaintiff's answers in cross-examination, she has actually received various sums of money from the agents or representatives of the Defendant. On the totality of the evidence, I find that the amount of GH¢4,000.00 paid to the Plaintiff by a representative of the Defendant in December, 2014 was to reduce the Defendant's indebtedness to her. The Defendant has failed to prove to the satisfaction of this court that an amount of GH¢ 6,000 has been retained by counsel for the Plaintiff from an auction sale for the benefit of the Plaintiff herein. It has become a rule of practice that all proceeds from auction sales are paid into court before a person entitled to the same can apply for the release of the same. There is no evidence on record to show that Mr. Quarshie has in the past applied for the release of GH¢6,000.00 from any money paid into court for the benefit of the Plaintiff before me. Thus, the actual amount due to be paid to the Plaintiff as of December 2014 is GH¢7, 224.46.
By the nature of the relationship between the parties, the Plaintiff is entitled to interest on this amount from the date of maturity of the investment, i.e. 31/03/2014. After 31/03/2014, the Defendant had no justification for holding on to the Plaintiff's money. On the authority of Akoto v Gyamfi Addo ( 2005-2006) SCGLR 1018 and in consonance with the Court (Award of Interest and Post Judgment Interest) Rules 2005 C.I. 52, the Plaintiff is entitled to interest on the sum of GH¢7, 224.46 at the prevailing bank rate and at simple interest from 31/03/2014 till date of final payment.
Accordingly, judgment is entered against the Defendant in the sum of GH¢7,224.46 together with interest at the prevailing bank rate and at simple interest from 31/03/2014 till date of final payment.
The trial was very quick except that a couple of adjournments came about at the instance of the Defendant's lawyer. Having taken into consideration the provisions of Order 74 rule 2 of the High Court (Civil Procedure) Rules, 2004 C.I. 47, I ward cost of GH¢800.00 against the Defendant in favour of the Plaintiff.