BANNOR OSEI vs. NOBLE DREAM FINANCIAL SERVICES
  • 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
LAWYERS:  DOUGLAS OBENG FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
JUDGMENT

 

 

 

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.

 

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