KUMASI - A.D 2015

DATE:  4TH APRIL, 2015
SUIT NO:  BFS/95/15

Noble Dream Financial Services Ltd has been sued by the Plaintiff herein for the recovery of the sum of Twenty-Four Thousand, Four hundred and twenty Ghana Cedis, Fifty pesewas ( GH¢24, 420.50) being the investment made by the Plaintiff in the Defendant Company.


The Plaintiff’s case is concise. She invested an amount of GH¢ 22,100.00 for a period of 91 days at an interest rate of 10.5%. However, the Defendant failed to pay back her money upon maturity of the investment.


The Defendant also put up a terse defence to the effect that the Plaintiff has never been its customer. The Defendant denied any dealings whatsoever with the Plaintiff and stated that the company is not indebted to her.


For the determination of this case, two issues were set down for trial, namely, (i) Whether or not the Plaintiff is a customer of the Defendant Financial Institution? And (ii) whether or not the Plaintiff is entitled to her claim.


Counsel for the Defendant who was in court on 04/03/2015 when a date was fixed for the trial to commence on 23/03/2015, failed to attend court on the scheduled date. Thus, the Plaintiff was allowed to proof her 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.


As is always the case in all civil suits, it is the duty of a party who has made positive assertions which have been denied to lead evidence to prove his or her case by the preponderance of the probabilities. See sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. In the instant action, the Defendant elected not to participate in this trial but that does not imply that judgment be given in favour of the Plaintiff without convincing proof of her case. The Plaintiff must therefore prove her case as required by law.


In Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at 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.” See also Adwubeng v Domfeh [1996-97] SCGLR 660.


In proving her case, the Plaintiff led oral evidence which she supported with documentary evidence. She testified that she has a fixed deposit account with the Defendant Company in respect of which an investment certificate was issued to her. She tendered an investment certificate with reference number 20-120714 681- 01 was tendered as exhibit A. She told the court that at an agreed interest rate of 10.50%, the accrued interest on her investment of GH¢22,100.00 for 91 days is GH¢2,320.50. Continuing, the Plaintiff said she made the investment on 05/05/2014 and the due date was 06/08/2014. On 16/08/2014, the Plaintiff said she went to the Defendant to take her money but they refused to pay her. Concluding, the Plaintiff maintained that she is a customer of the Defendant Financial Institution which has now closed its offices .


To resolve the first issue, I must determine who a customer of a Bank or financial institution is. In my earlier decision in Ampofo Twumasi v Noble Dream (Unreported) Suit No. BFS 116/2015,Commercial court Kumasi 13/03/2015,I reviewed the English cases of Commissioner of Taxation v English, Scottish and Australian Bank Ltd (1920) AC 683 and Woods v Martins Bank Ltd ( 1959) 1 QB 55 where their Lordships defined who a customer of a Bank is. I agreed with Lord Dunedin’s statement in the Commissioners of Taxation case (supra) 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.”


I have had no cause to doubt the authenticity of the investment certificate tendered in evidence by the Plaintiff to support her dealings with the Defendant. I observed from Exhibit A that the Defendant’s authorized officer approved of the transaction with the Plaintiff.


On these grounds, I will apply the same reasoning in the Ampofo Twumasi case referred to, supra and hold that once the Plaintiff deposited money with the Defendant Non-Bank Financial Institution for a fixed period of 91 days which they accepted, she became a customer of that Institution.


Is the Plaintiff entitled to recover her investment and the accrued interest from the Defendant? This issue will be considered at this point.


From exhibit A, the Plaintiff invested her money in a product of the Defendant described as “Noble Trust” for a period of 91 days. On the same exhibit A, there is this notice: “N.B. 15% penalty would be charged on the amount invested should this investment be terminated before the maturity date. Thank you.”


From the foregoing, it can be reasonably inferred that the Defendant undertook to pay back the Plaintiff’s money to her on the agreed terms in exhibit A. However, if she terminated the investment before the due date, a penalty will apply. This time round, the Defendant has breached the terms of exhibit A by refusing to pay back the Plaintiff’s money plus the accrued interest. Equity, they say, is fairness. It is my considered opinion that the Defendant is to pay back the Plaintiff’s investment together with the accrued interest as of 06/08/2014. Per exhibit A, the invested amount was GH¢ 22,100 and the accrued interest is GH¢ 2,320.50. Therefore, the total amount which the Defendant is to pay to the Plaintiff as of 06/08/2014 is GH¢24, 420.50.


The Plaintiff’s second claim on her writ of summons is interest on the sum of GH¢24,420.50 from August, 2014 to date of final payment. The evidence shows that the Plaintiff intended to invest her money for a period of 91 days only. Therefore, there was no justification for the Defendant to hold on to the Plaintiff’s money after this date. On the authority of Akoto v Gyamfi Addo (2005-2006) SCGLR 1018, I find that the Defendant must pay interest on the sum of GH¢24,420.50 unreasonably withheld from the Plaintiff since 06/08/2014. However, the rate of interest to be applied will be determined under the Court (Award of Interest and Post Judgment Interest) Rules, 2005 C.I. 52. The relevant provisions to this case are stated below.


Rule 1: If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated

(a) At the prevailing bank rate at the time the order is made, and

(b) At simple interest.


Rule 2(1)

Subject to sub rule (2), each judgment debt shall bear interest at the statutory interest rate from the date of delivery of judgment up to the date of final payment.


Sub rule (2) deals with instances where the interest rate is agreed by the parties or is embodied in an instrument or admitted by the parties. In the instant action, I have already found that the agreed interest rate was for a period of 91 days only. Accordingly, I award interest on the sum of GH¢24,420.50 at the prevailing bank rate and at simple interest from 06/08/2014 till date of final payment.


Having considered the simplicity of this case coupled with the short duration of the trial, and being guided by the provisions of Order 74 of C.I. 47, I award costs of GH¢1000 against the Defendant.