IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
AMOFA KOFI KUSI
UNICREDIT GHANA LIMITED
DATE: 29TH JULY, 2019
JUDGES: JUSTICE DR. RICHMOND OSEI-HWERE, J
LAWYERS: ENOCH AMOAH, COUNSEL FOR THE PLAINTIFF
On the 4th of December, 2018 the plaintiff instituted an action against the Defendant. By his writ of summons, the plaintiff sought the following reliefs:
a. The recovery of the total sum of suns of GHC291, 208.35 being a fixed deposit investment made by the Plaintiff with the Defendant on 11th August, 2017.
b. Interest on the sum of the contract rate of 20.50% from 11th August, 2017 till date of final payment.
c. Cost including cost of litigation.
d. Any further order that this Honorable Court may deem fit.
Appearance was entered on behalf of the Defendant by its solicitor on the 6th of December, 2018 and a statement of defense was also filed on behalf of the defendant on 19th December, 2018.
On 20th December, 2018 the plaintiff filed an amended writ of summons and statement of claim. The reliefs sought were the same as the original writ.
After unsuccessful attempts at settlement the following issues were set down for trial namely:
1. Whether or not the Plaintiff’s investment was redeemed as at 15th October, 2017?
2. Whether or not the Plaintiff is entitled to his claim?
It is observed that per the Court’s records, the Defendant was duly served with hearing notices to attend court for the trial to commence but it failed to show up. This is evidenced by some of the affidavits of service sworn on 04/06/2019 and 06/06/2019.
The Defendant also failed to comply with the orders of the court to file its witness statements. The court consequently invoked Order 32 rule 7A of the High Court (Civil Procedure) (Amendment) Rules, 2014, CI 87 and struck out the defence of the Defendant.
With the continuous absence of the Defendant, 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, CI 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 the 04/07/2019. He relied on the witness statement filed on behalf of the Plaintiff on 07/06/2019.
The plaintiff’s case is that he is a businessman and invested an amount of GHs291, 208.35 in a fix deposit with the Defendant Company at an interest rate of 20.50% on the 11th of August, 2017. That, sometime in August 2018, he went to see the Kejetia Branch manager of the Defendant Company to demand the redemption of his investment. The manager however pleaded with him to redeem the investment on another day. He thereafter visited the Defendant Bank on countless occasions to demand redemption of his investment but the Defendant refused to allow him withdraw his money. He therefore caused his lawyers to demand payment of his investment from the Defendant and the Defendant through its Kejetia Branch manager made an undertaking by a letter dated 2nd October, 2018 to pay the investment with interest on or before the 15th Day of October, 2018. The plaintiff tendered in evidence the said letter marked as Exhibit A. According to plaintiff, he later received text messages indicating that his investment has been redeemed but the Defendant still did not allow him to withdraw his investment. Plaintiff tendered the said text messages marked as Exhibit B in evidence. According to plaintiff, a further demand was made by his lawyer to the Defendant Bank who wrote per their head of legal affairs, assuring the Plaintiff that the investment with interest accrued would be paid to the Plaintiff by 10th November, 2018. He also tendered the said letter marked as Exhibit C into evidence.
The Plaintiff stated that despite several assurances by the Defendant, he has still not been paid his investment and the accrued interest. He therefore prays this Honourable court to grant him the claims against the Defendant as endorsed on the Amended Writ of Summons filed on the 20th of December, 2018.
Admission is defined by the 7th edition of the Black’s Law Dictionary as a voluntary acknowledgment of the existence of facts relevant to an adversary’s case. Justice Brobbey in his book, Essentials of Ghana Law of Evidence at page 112 explained admissions to mean the fact or issue which has been conceded and is no longer in contention. It was held in Samuel Okudzeto Ablakwa & Anor v Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16 that where a matter is admitted proof is dispensed with.
Also, in the case of In re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II vrs Akotia Owirsika III (Substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, which was quoted with approval in Fynn v Fynn [2013-2014] SCGLR 727 at 738, it was held that there cannot be any better proof than an adversary admitting a fact in contention.
In law there are two main types of admission. They are the formal and informal admission. An admission is formal when it is contained in the pleadings of the opponent; thus when the opponent voluntarily accepts the truth or authenticity of the facts averred by the adversary. A formal admission may also occur during cross examination.
Informal admissions are presumptive in nature and may include either implied, incidental or adoptive admissions. Adoptive admissions are actions by a party that indicates approval of a statement made by another, and thereby accepting that the statement is true.
In FCX Inc. v. Caudill, 85 N.C. App. 272 (N.C. Ct. App. 1987), the court observed that “implied admissions are received with great caution. However, if the statement is made in a person's presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement was untrue and it is shown that he is in a position to hear and understand what is said and has the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission”.
Implied admission is an admission that can be reasonably inferred from the act or statement of a party, or from a party’s failure to perform an act or make a statement. It is also referred to as tacit admission.
In the instant case the defendant has impliedly admitted the plaintiff’s averments due to its failure or refusal to participate in the trial.It is also apparent from the unchallenged evidence on record that the plaintiff is entitled to his claim against the defendant, as he has established his claim on the preponderance probabilities. I therefore enter judgment in favour of the plaintiff. Consequently, I order the defendant to pay an amount of GHC 291,208.35 to the plaintiff plus interest on the sum at the rate of 20.5% from 11th August, 2017 till date of final payment.
I have taken into consideration the provisions of order 74 of C.I. 47 on award of cost. I have taken cognisance of the expenses incurred (including lawyer’s fee) in prosecuting this case by the plaintiff. Accordingly, I award cost of GHC 20,000 against the Defendant and in favour of the Plaintiff.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH