IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
KWAME OHENE - (Plaintiff)
NOBLE DREAM MICRO FINANCE LTD. - (Defendant)
DATE: 7TH OCTOBER, 2015
SUIT NO: RPC/160/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
FREDRICK KANKAM FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
This is one of hundreds of suits that have been filed against Noble Dream Micro Finance Limited by aggrieved patrons. Ordinarily, I should be talking about "customers" but for good reasons, I have refrained from using that word for now.
In the instant case, the Plaintiff is seeking re-payment of the principal amount invested in the Defendant Company plus the accrued interest. The Defendant also says that the Plaintiff was advised on the volatility of the Capital market. Yet, he chose to invest his money in the capital market and has thereby lost his investment. It is the Defendant's case that it is not under any obligation to re-pay the Plaintiff's lost investment. These assertions were denied by the Plaintiff in his reply. He maintained that he entered into a contract with the Defendant company only and the company is bound to re-pay his money together with the accrued interest as agreed upon.
After unsuccessful attempts at resolving this matter, issues were set down for trial, namely:
Whether or not the Plaintiff is a customer of the Defendant Financial Institution?
Whether or not the Plaintiff invested GH¢70,800.00 in the Defendant's Institution?
Whether or not the Plaintiff is entitled to his claim?
On 11/06/2015, the Plaintiff opened his case and led evidence to discharge the burden of proof imposed on him by sections 11(1) and 11(4) of the Evidence Act, 1975 NRCD 323. In short, the Plaintiff is required to introduce evidence which makes his assertions more probable than not when the entire evidence is assessed so as to avoid a ruling against him. This standard of proof has been applied in several cases. Notable among them are Zambrama v Segbedzi (1991) 2 GLR 221 CA; Adwubeng v Domfeh (1996-97) SCGLR 660; Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis ( 2007-2008) SCGLR 580; and Continental Plastics v IMC Industries-Technik GMBH ( 2009) SCGLR 298 at 307. It is against this laid down standard that the Plaintiff's case will be measured.
The Plaintiff's evidence was concise. He told the court that he is a retired police officer and that on 01/05/2014, he invested an amount of GH¢ 60,000.00 with the Defendant Company. He tendered a document bearing the details of his investment as exhibit A. Concluding, the Plaintiff said the Defendant must pay back his money with interest whether or not the economy is bad.
Cross-examination by counsel for the Defendant was centered on two main areas. First, he sought to attack the date on exhibit A and from his line of questioning, the Plaintiff could not have invested money on the 01/05/2014 because it was a statutory public holiday and the Defendant's offices were closed. Second, he attacked the interest rate which to him did not make business sense i.e. the fact that the Plaintiff expected to be paid 54% interest per annum on his investment. He put to the Plaintiff that he assumed a high risk by voluntarily choosing to invest his money in the capital market. All these suggestions were rejected by the Plaintiff. He stood his ground under extreme pressure from Counsel for the Defendant.
To corroborate his evidence, the Plaintiff called a staff of the Defendant Company whom he dealt with to give evidence on his behalf. PW1 explained that she was the person who took the Plaintiff's particulars and registered him in the Defendant's system. She also filled out a deposit slip for him to enable him make a deposit. Further, PW1 identified her signature on exhibit A as the "authorized signature". As regards the disputed date of the investment on exhibit A, PW1 explained that there was a previous investment which expired on 30/04/2014 and their system automatically adds one day irrespective of the date. Similarly, where a customer has indicated that his investment be rolled over, the system automatically does the roll-over irrespective of the date. Thus, in the instant case, PW1 said the Plaintiff's investment was automatically rolled-over on 01/05/2014. During cross-examination, counsel for the Defendant demanded to know how the rollover was done. To these line of questioning, PW1 was emphatic that per the Defendant's standard operations, a customer is phoned a few days to maturity and if he or she indicates the investment be rolled over, those instructions are carried out. In answering further questions put to him by counsel for the Defendant in respect of the amount rolled over, PW1 insisted the amount rolled over was GH¢60,000.00 and not GH¢66,000.00 because the Plaintiff had access to his accrued interest of GH¢ 6,000.00 one day after the maturity of the earlier investment.
The Defendant elected not to participate further in the trial after the closure of the Plaintiff's case. I say so because the Defendant and its counsel were fully aware of the date they were to open their defence but there was a no show. No reasons were given for their absence and so the court proceeded to fix a date for judgment
I have had the opportunity to define who a customer of a bank is in several cases involving Noble Dream Micro Finance Ltd. In doing so, i was persuaded by the decisions in some English cases on the subject. Among these cases are Commissioner of Taxation v English, Scottish and Australian Bank
Ltd (1920) AC 683; Woods v Martins bank Ltd (1959) 1 QB 55 ; Marfani & Co Ltd v Midland Bank Ltd (1968) 1 WLR 956 and Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd (1966) 2 Lloyds Rep. 373. In the Commissioner of Taxation case (supra), 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…”
I think this definition is to be taken a step further to include persons who have made short term investments such as certificates of deposits, fixed or time deposits and the like. A relationship akin to that of regular depositors is created and naturally, such persons expect the bank to repay their investments together with any agreed interest, upon maturity. In those circumstances, if the bank elects to put the monies in "High Risk" investments such as the capital market, that does not affect its obligation towards the person who initially deposited the money. Put differently, the fact that a bank makes bad investment decisions leading to losses should not in any way affect its obligations to its customers.
In the instant case, the evidence of the Plaintiff and PW1 combined leads to the irresistible conclusion that the Plaintiff made an initial deposit which was rolled over upon maturity. It is not out of place for a customer to misplace an investment certificate. In this computer age when information is stored electronically, a paper certificate can always be generated from a computer. In the case before me, PW1 even identified her signature on exhibit A as the authorized officer who received the Plaintiff and made entries in respect of his investment in the Defendant's system. I have had no cause to doubt her credibility. Once the customer has given credible evidence in respect of his investment, the evidential burden shifted onto the Defendant to introduce evidence to the contrary. Merely attacking the evidence adduced by the Plaintiff and his witness during cross-examination without any solid basis is not enough to discharge this burden. The least the Defendant could have done was to search for the Plaintiff's investment details from its database. Having failed to discharge this burden, I find that the Plaintiff is a customer of the Defendant Non-Bank financial institution and it was the Defendant's duty to ensure that the account was "KYC" compliant as required by section 42 of the Non-Bank Financial Institution Act, 2008, Act 774.
Next to be determined is whether or not the Plaintiff invested GH¢ 70,800.00 with the Defendant. I will say that the production of an investment certificate such as exhibit A, is a presumption that a deposit was made. It has been demonstrated by PW1's corroborative evidence that the Plaintiff's initial investment was rolled over electronically on 01/05/2014 irrespective of the date. This was after the expiration of the initial investment on 30/04/2014. The defendant elected not to introduce any evidence to rebut this presumption by refusing to testify when a date was fixed for that purpose. I therefore conclude that as at 01/05/2014, the Plaintiff's investment with the Defendant stood at GH¢ 60,000.00. Since the interest accrued from the Plaintiff's previous investment was not rolled over with the principal, that will be money standing to his credit in the defendant's system and he was at liberty to withdraw the same at any time.
From exhibit A, the interest rate (per tenure) was stated as 18% which translated to GH¢10,800.00 for the six months period. The total amount payable on the due date of 02/11/2014 was GH¢70,800.00. This was duly acknowledged by an officer of the Defendant who testified as PW1. Beyond 02/11/2014, the Defendant had no reason to hold onto the Plaintiff's money. The evidence however shows that the defendant has unduly withheld the Plaintiff's money without just cause and must compensate him by way of interest. If the Plaintiff had been paid his money, he would have made profits from it. As Viscount Simon puts it in Riches v Westminster Bank Ltd ( 947) Ac 390 at 398, interest is:
" The accumulated fruit of a tree which the tree produces regularly until payment."
What is the interest rate to be applied? Certainly, not the 18% indicated on exhibit A because that was for the agreed six months period only. In my earlier decisions, I simply pegged the rate at "the prevailing bank rate." I failed to appreciate the confusion that could arise in an attempt to calculate the interest. The Bank of Ghana publishes its prime rate but various commercial banks add their margins, depending on the market situation. In circumstances of this nature, it is my considered opinion that substantial justice will be done if the interest rate is pegged at the Bank of Ghana Treasury Bill rate in consonance with rule 4(2) of the Court ( Award of Interest and Post Judgment Interest Rules) , 2005 C.I. 52.
Accordingly, I enter judgment against the Defendant and in favour of the Plaintiff in the sum of GH¢70,800.00 plus interest at the Bank of Ghana Treasury Bill Rate from 03/11/2014 to the date of delivery of judgment. I further award post judgment interest at the Bank of Ghana Treasury Bill Rate from the date of delivery of judgment till date of final payment.
In awarding cost, I am mindful of the fact that this trial could have been avoided if the defendant had been candid right from the onset. There is no way it could have gotten away with the Plaintiff's money. The pre-trial stage was a golden opportunity for such a straight forward matter to be resolved on terms suitable to both parties. Yet, the Defendant resorted to using delay tactics. I have taken into consideration the provisions of order 74 of C.I. 47 and award cost of GH¢ 5,000.00 against the Defendant.