IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
BANNOR OSEI - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES - (Defendant)
DATE: 4TH MAY, 2016
SUIT NO: BFS/229/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
DOUGLAS OBENG FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
This court has been called upon to determine whether or not the Defendant herein owes the Plaintiff the sum of GH¢22,100.00 and interest thereon from February, 2014 till date of final payment.
In his statement of claim filed on 25/03/2015, the Plaintiff asserted that on 13th November, 2013, he invested an amount of GH¢ 22,100.00 for a fixed period of 91 days on the advice of the defendant at its Agona Branch on agreed terms. It is his case that upon maturity of the said investment, the defendant failed to repay his principal and the accrued interest. Hence, the instant action.
The defendant entered appearance per its lawyer who proceeded to file a defence. At the directions stage, orders were made for the filing of witness statements. Even though counsel for the defendant failed to attend court, an order was made for the courts notes relative to the filing of witness statements to be served on counsel. Subsequently, the plaintiff's witness statement was served on counsel for the defendant on 08/12/2015. A hearing notice was again served on counsel for the defendant on 03/12/2015 to attend court on 08/12/2015 for case management conference. As has been the trend, the defendant and its counsel failed to show up. The last hearing notice was served on defence counsel on 24/03/2016 for the 07/04/2016 hearing. When defence counsel and his client neglected to come to court, the defendant's defence was struck out in accordance with Order 32 rule
7A (3) (b) of C.I. 47 as amended by C.I. 87.
The onus of proof is on the plaintiff who is alleging that the defendant is indebted to him. Unless he is able to discharge this burden to the standard required by law, he cannot succeed. Put differently, the fact that the defendant elected not to participate in the trial does not mean that the plaintiff will get what he wants on a silver platter! He must proof same. He is expected to lead evidence from which the court can infer that his claim is more probable than not as required by sections 11(4), and 12 of the Evidence Act, 1975 NRCD 323.
As Brobbey JSC put it in Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-
2004) SCGLR 420
" ... A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant..."
At the trial, the plaintiff relied on his witness statement filed on 30/11/2015. In his evidence-in-chief, the plaintiff said upon hearing an advertisement on various products of the defendant company, he proceeded to its Agona branch and upon the advice of its customer relations officer, he settled on the
91 days fixed deposit. According to the plaintiff, the said customer relations officer explained to him that as a customer and an investor, he could withdraw his money in addition to the accrued interest at the end of the 91- day period. So, on 13/11/2013, the plaintiff said he invested the sum of GH¢22,
100.00 for 91 days at an agreed interest of 10.5% per tenure. He was given a pay-in slip and an investment certificate was generated for him. He tendered the pay-in-slip and two investment certificates as exhibits "A" and "B". Concluding, the plaintiff said all efforts to retrieve the amount invested plus the interest have proved futile and he is of the view that the defendant's failure to pay the money is deliberate.
From exhibit A, I find that the plaintiff deposited the sum of GH ¢20,010.00 with the defendant. On
09/08/2013, an amount of GH¢ 20,000.00 was invested in a 91 days fixed deposit and the due date was 09/11/2013. The Plaintiff was entitled to be paid a total amount of GH¢22,100.00 on the said date. However, I gather from the second investment certificate in the exhibit B series that on
13/11/2013, this amount was re-invested on the same terms and the plaintiff was to be paid the sum of GH¢2,320.50 as interest per tenure.
The exhibit B series constitute a binding agreement on the parties thereto. Hence, the defendant is under a contractual obligation to repay the principal amount invested and /or reinvested by the plaintiff together with interest.
I must say that by their own agreement, the 10.50% interest was for the 91 days only. Beyond that date, there was no agreement on the interest rate. That being the case, the applicable rate of interest will be in accordance with Rules 1, 2(1) and 4 of the Court (Award of Interest and Post Judgment Interest) Rules, 2005 C.I. 52.
Accordingly, I enter judgment in favour of the plaintiff against the defendant in the amount of GH¢
22,100 plus 10.50% interest from 13/11/2013 to 14/02/2014 which sums to GH¢24,420.50. I also award interest on the sum of GH¢24,420.50 from 15/02/2014 to the date of delivery of judgment; and post judgment interest up to the date of final payment. The rate of interest shall be the prevailing bank rate and for the avoidance of doubt, the Bank of Ghana 91 days treasury bill rate is to be used as the prevailing bank rate.
Cost of GH¢2,00.00 is awarded against the Defendant.