IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
FRANCIS PREMPEH AGYEMANG - (Plaintiff)
NOBLE DREAM MICRO FINANCE - (Defendant)
DATE: 4TH NOVEMBER, 2015
SUIT NO: BFS/57/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAKU YEBOAH APPIAH FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
On 26/09/2014, the Plaintiff herein instituted the instant action against the Defendant herein, to recover various sums of money which he had invested in the Defendant Company together with the accrued interest, post judgment interest and cost. Excluding the interest, the total amount being claimed is GH¢23,878.00. The Defendant denied liability to the Plaintiff’s claims on the basis that it had never conducted any business with him.
After unsuccessful attempts at settlement, two issues were set down for trial, namely:
1. Whether or not the Defendant owes the amount claimed by the Plaintiff?
2. Whether or not the Plaintiff is a customer of the Defendant Bank?
It is to be noticed that per the court’s records, counsel for the Defendant was duly served with hearing notices to attend court for the trial to commence but he failed to show up. This is evidenced by three affidavits of service sworn on 08/07/2015; 14/08/2015; and 01/09/2015.
Prior to that, the Defendant’s usual representative, Patience Forson, was in court on 12/03/2015 without the Company’s lawyer and she was informed to communicate the date for the next sitting to the Defendant’s lawyer. Strangely, after that date, Ms. Forson stopped coming to court.
With these series of events, the court had no option than to proceed with the case under Order 36 rule 1 (2) (a) of the High Court (Civil Procedure) Rules 2004, C.I. 47. It states:
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.
On the basis of the rule, the Plaintiff was allowed to prove his claim on 12/10/2015. The Plaintiff gave a detailed account of his encounter with the Defendant over the period in issue. Following radio announcements in respect of the Defendant’s products, the Plaintiff said he went to the Defendant’s Asafo branch to make enquiries. Thereafter, he opted for the 91 days or three months package and was given investment certificates for each investment he made.
First, the Plaintiff invested GH¢17,000.00 on 10/12/2013 at an interest rate of 10.5% for 91 days (exhibits A & A1). Second, in January 2014, he invested GH¢2,901.50 at the same interest rate and duration (exhibit B). Third, an amount of GH¢1,709.00 was invested in February, 2014 for 91 days on the same terms (exhibit C).
Upon maturity of the 10/12/2013 investment, the Plaintiff said he rolled over the principal amount of GH¢17,000.00 and sought to withdraw the accrued interest of GH¢1,785.00, but the Defendant could only pay him GH¢1,000.00. He tendered the certificate evidencing the re-investment as exhibit D. The crux of his case is that all these investments have expired but the Defendant has failed to pay back his money plus the accrued interest.
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. In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses.
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 the instant case, I have no doubt in my mind that exhibits A, B, C and D were duly issued by the Defendant Non-Bank Financial institution as evidence of monies received from the Plaintiff and duly invested in the Defendant’s 91-day product. It will be strange to state that the Defendant has never had any financial dealings with the Plaintiff in the light of the exhibits tendered. From exhibit A1, the Plaintiff’s first encounter with the Defendant was on 10/12/2013. Per that deposit slip, an amount of GH¢17,000.00 was deposited into the Plaintiff’s account numbered 201 20 700 93601. That single act alone is sufficient to create a bank/customer relationship.
In my earlier decisions involving Noble Dream Micro Finance Ltd on similar issues, I endorsed the reasoning in two English cases, namely: (i) Commissioner of Taxation v English, Scottish and
Australian Bank Ltd (1920) AC 683; and (ii) Woods v Martins Bank Ltd (1959) 1 QB 55.
One of the questions which arose in an action for conversion brought by the Commissioners of Taxation as true owners of a cheque against the collecting Bank in the first case 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…”
Salmon J also decided in the second case 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.
From the foregoing, I am highly convinced that the Plaintiff before me is a customer of Noble Dream Micro Finance Co. Ltd. The defence put up by Noble Dream in its statement of defence that it does not know the Plaintiff amounts to lack of diligence on its part. All Banks and Non-Bank Financial institutions in Ghana are required to know their customers. In simple terms, each account must be “KYC” compliant.
The Defendant being a Non-Bank Financial Institution, the legal requirement to know its customers is The Non-Bank Financial Institution Act, 2008, Act 774. Section 42 is relevant for the purposes of this case. It states thus:
“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.
In effect, the Defendant failed in its legal duty to know all its customers and that must not operate against the Plaintiff who has clearly demonstrated that he has been a customer of the Defendant since 10/12/2013. I therefore conclude that the Plaintiff is a customer of the Defendant.
Next, I will determine whether or not the Defendant owes the amount claimed by the Plaintiff. This can be deposed of with ease. It can be gleaned from exhibits B, C and D that these investments expired on 28/04/2012; 19/05/2014 and 12/06/2014. The Plaintiff has categorically stated that the Defendant has failed to pay back these monies. Obviously, at the end of these maturity dates, the Defendant was liable to pay to the Plaintiff the principal invested together with the accrued interest per the agreement between the parties. So, in respect of these three investment, it can be gathered from exhibits B,C and D that upon maturity, the Defendant was to pay to the Plaintiff GH¢3,206.16 + 1,1888.93 + 18,785.00, making a grand total of GH¢23,880.09. The difference between this amount and the amounts endorsed on the Plaintiff’s writ is about GH¢2.00 which is insignificant and can be ignored. Therefore, I conclude that the Defendant is liable to pay the total amount of GH¢23,878.00 endorsed on his writ of summons to the Plaintiff.
The Plaintiff said in his evidence that in respect of the initial investment evidenced by exhibit A, the Defendant paid only a fraction of the accrued interest to him i.e. GH¢1,300.00 leaving a balance of GH¢500.00. Unfortunately for him, his claims as endorsed on the writ did not include this figure. Since this amount was not expressly claimed, the court is unable to grant it.
The Plaintiff’s claim for interest will also be granted because the Defendant has had the use of his money without any justification as was held in Akoto v Gyamfi Addo (2005/2006) SCGLR 1018.
Interest will be calculated from the respective dates of maturity to date of final payment. Post judgment interest from the date of judgment will also be awarded.
Accordingly, judgment is entered against the Defendant in the sum of GH¢18,785.00 plus interest at the prevailing Bank rate from 12/03/2014; GH¢3,205.00 plus interest at the prevailing Bank rate from 29/04/2014 and GH¢1888.00 plus interest at the prevailing bank rate from 20/05/2014, to the date of delivery of judgment. Post judgment interest is awarded on the total amount of GH¢23,878.00 from the date of delivery of judgment till date of final payment.
For the avoidance of doubt, the 91-day Treasury Bill rate as determined by the Bank of Ghana is to be used as the prevailing Bank rate.
The Plaintiff is also entitled to cost which will be assessed at GH¢3000.00 after taking into consideration the provisions of Order 74 of C.I. 47 on the award of cost and the circumstances of this case.