IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
ASNETH GYABENG SERWAA - (PLaintiff)
LORD WINNERS INVESTMENT LIMITED - (Defendant)
DATE: 6TH JUNE, 2016
SUIT NO: BFS/195/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
AKUA ADOMA ADDAE FOR WILLIAM KUSI FOR PLAINTIFF
KWAME BOAFO FOR DEFENDANT
It is provided under Order 32 Rule 7A (3) (b) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 as amended by C.I. 87 as follows:
“where a party has failed to comply with any of the directions given at a case management conference or a pre-trial review or both, the Judge may ...
(b) strike out the defence and counterclaim as the case may be, if the non-complying party is a defendant"
It is further provided under Order 36 rule 1 (2) (a) of C.I. 47 that:
(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.
These rules have been applied to the circumstances of this case. The plaintiff caused a writ of summons and statement of claim to be issued from the registry of this court on 08/04/2014. She sought to recover a liquidated sum of GHS 17,000.00, interest thereon as well as general damages from the defendant. The defendant filed a late defence on 09/06/14. It appears to me that the non-compliance with Order 11 rule (2) (1) of C.I. 47 was waived by the court when the defendant brought it to the court's attention that it was in the process of filing its late defence as can be seen from the court notes of 03/06/2014.
Irrespective of that waiver, the defendant failed to file its witness statement(s) as ordered by the court on 08/03/2016. Even though the defendant and its counsel were not in court on the said date, an order was made for the court notes (order) and a hearing notice to be served on counsel for the defendant. Accordingly, these processes were served on counsel for the defendant through his clerk by name Tina on 17/03/2016. Subsequent to that, the plaintiff's witness statement and pre-trial check-list were served on defendant's counsel on 21/03/2016 and 05/04/2016 respectively.
Notwithstanding the service of these processes on counsel for the defendant, it turned out at the case management conference held on 20/04/2016 that the defendant had failed to file its witness statement. In compliance with the provisions in respect of the filing of witness statements referred to above, the court duly struck out the statement of defence filed by the defendant and a date was set for the plaintiff to prove her claims.
It is to be noted that the defendant's counterclaim was not struck out on the same date that the defence was struck out as per the court's record. Indeed, this was an error, but in any case, the defendant elected not to participate in the trial by its conduct and so the counterclaim ought to be struck out under Order 36 rule 1 (2) (a) of C.I. 47 and the same is struck out.
The issues to be determined by the court at this time are:
Whether or not the plaintiff invested with the defendant company an amount of seventeen thousand Ghana Cedis (GHS 17,000.00) on the 26th day of March, 2013 at an interest rate of 3% per month for a period of three (3) years?
Whether or not the Plaintiff applied to terminate her investment with the defendant company?
Whether or not the defendant company agreed to refund the principal amount invested by the plaintiff together with interest accruing thereon?
Whether or not under the terms governing the investment, the contract of investment cannot be terminated at the instance of any of the parties?
Whether or not the plaintiff is entitled to her reliefs?
At the trial, the plaintiff relied on her witness statement filed on 21/03/2016 as her evidence-in-chief, she did not call any witnesses. She said in her evidence-in-chief that on 26/03/2013, she invested an amount of GHS 17,000.00 in the defendant's product known as "ADIDIDAA" , for a renewable term of three years and at an interest rate of 3% per month. However, in May, 2013, she applied to terminate the said investment when she heard the defendant company was in distress. According to the plaintiff, she approached the Maakro branch manager of the defendant company who gave her assurance that the principal amount and accrued interest would be paid to her. However, the defendant did not keep to its promises. She denied ever taking a loan from the defendant and said she is never indebted to the company. In further proof of her case, she tendered a document evidencing the transaction which the defendant issued to her on 26/03/2013 as exhibit "AGM 1".
By the provisions of sections 11(4) and 12 of the Evidence Act, 1975 N.R.C.D. 323, the onus of proof of the issues before this court rests on the plaintiff, having made those positive assertions in her pleadings. The fact that the defendant's statement of defence and counterclaim have been struck out does not mean that the reliefs sought by the plaintiff will automatically be granted. She still has to prove her claims by cogent evidence. She will only get judgment in her favour if the court finds her testimony credible and also probable, given the circumstances of the case. This evidential requirement was summed up in the case of Takoradi Flour Mills v Samir Faris Takoradi Flour (2005/2006) SCGLR 883.
At page 884 (holding 5), the Court stated:
It is sufficient to say that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a balance 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..."
On the face of exhibit " AGM 1", the plaintiff invested GHS 17,000.00 at an interest rate of 3% for three years, commencing 26/03/2013, and ending 26/03/2016. It is to be noted that there was no indication as to whether the 3% interest was for a month or per annum.
I have scrutinized exhibit " AGM 1". Apart from my observation relative to the interest rate, it is indeed a true reflection of the investment which the plaintiff has testified to. Put differently, the said document confirms the plaintiff's oral account on the investment in issue. I have taken judicial notice of the ever rising interest rates in Ghana, based on the prime rate set by the Central Bank at various times, and interest rates set by micro-finance institutions such as the defendant herein. Therefore, the plaintiff's oral evidence that the agreed rate of interest of 3% per month is more probable than its non-existence -existence.
Even though the plaintiff did not state the mode of her application to terminate her investment when she got wind of the defendant's dwindling business, one would have expected her to put the same in writing. If she did, the document would have been very vital to the success of her claim on that point. Although no such document was not put in evidence, i accept as credible the plaintiff's oral testimony that she applied to have her investment terminated, and the defendant promised to refund her money, in the absence of any convincing evidence to the contrary.
Furthermore, on the basis of the evidence before me, the plaintiff was not precluded from terminating her investment before the agreed three years duration and i so find. Her case that the defendant promised to re-pay her money together with the accrued interest is convincing and i accept the same. is more probable, than not, having regard to the evidence before me. Therefore, she is entitled to be paid her principal amount of GHS 17,000.00.
That apart, the plaintiff is entitled to be paid interest on the said amount, but at which rate and for what duration? The commencement date of the investment is certain. The plaintiff neither stated in her evidence- in -chief nor in her statement of claim the actual date in May, 2013 when she applied to terminate her investment. Did she give the defendant notice prior to termination? By the custom of that trade, investors are required to give a certain minimum period of notice to terminate their investments. This is in view of the obvious fact that such monies are also invested in other equities or given out an loans to other customers and it is from the profits that interest is paid. It can be reasonably inferred from paragraph 8 of the plaintiff's witness statement that the defendant was duly put on notice. This is what the plaintiff said:
The said manager gave me scheduled times within which i was to receive my principal plus interest, but on all those scheduled occasions, i did not receive same".
Based on the facts and evidence before me, i will allow the plaintiff to recover interest at the rate of 3% per month from the date of the investment to the end of May, 2013. After terminating the investment, the 3% monthly interest will no longer apply. Beyond that date, the interest rate exigible will be the prevailing bank rate. Since the plaintiff has been denied the use of her money as well as its fruits", she will be entitled to further interest, including post judgment interest. In the words of Viscount Simon in Riches v Westminster Bank Ltd ( 1947) AC 390 at 398 interest is:
The accumulated fruit of a tree which the tree produces regularly until payment"
Also, the defendant has not provided any justification for holding on to the plaintiff's money after she had notified the institution that the investment be terminated. Hence, on the authority of Akoto v Gyamfi - Addo (2005-2006) SCGLR 1018, the plaintiff is entitled to be paid interest on the money unreasonably and unjustifiably withheld. Even if she had not terminated the investment at the time that she did, the same would have matured on 26/03/2016. Either way, the defendant would be required to pay interest, albeit at different rates.
Now, to the question of general damages. In the dictionary of law by L.B. Curzon, 5th edition, at page 101, "damages " is defined as " the court's estimated compensation in money for detriment or injury sustained by plaintiff in contract or tort."
Also, in 'McGregor on Damages', the word 'Damages' is defined as " the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum, which is awarded unconditionally." ( see chapter 1, page 3).
In contract, the purpose of 'damages' is to put the plaintiff in the position in which he would have been if the contract had been performed. That is referred to as the principle of restitutio in intergrum. General damages need not be proved by evidence since it flows from the natural consequences of the breach. The court determines the quantum based on the facts and evidence led generally. This principle has been adequately explained in cases such as Delmas Agency Gh Ltd v Food Distributors
International Ltd ( 2007-2008) SCGLR 748 at 760; Ghana Ports & Harbours Authority & Anor v Nova Complex ( 2007-2008) SCGLR 806 at 811; Juxon-Smith v KLM Dutch Airlines (2005-2006) SCGLR 438; and Attorney General v Faroe Atlantic Co. Ltd. (2005-2006) SCGLR 271.
On the facts and evidence before me, it is my considered opinion that the plaintiff is not entitled to any general damages. She terminated the agreement in her best interest. She will be duly compensated for the loss of use of her money by way on interest- that to me is adequate compensation both in law and in equity.
Accordingly, i enter judgment in favour of the plaintiff against the defendant for the sum of GHS 17,000.00 together with the agreed interest rate of 3% per month from 23/03/2013 to 31/05/2013. I also award interest at the prevailing bank rate on the sum of GHS 17,000.00 from 01/06/2013 to the date of delivery of judgment. I further award post judgment interest on the sum of GHS 17,000.00 from the date of delivery of judgment till date of final payment.
Having taken into consideration the circumstances of this case and the provisions of Order 74 of C.I.
47 on the award of cost, i award cost of GHS 2000.00 in favour of the plaintiff against the defendant.