IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
FRANCIS K. BARIMA KUFFOUR - (Plaintiff)
NOBLE DREAM MICRO FINANCE LTD. - (Defendant)
DATE: 23RD MARCH, 2016
SUIT NO: BFS/199/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
AKUA ADOMA ADDAI FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
This action for the recovery of the sum of GH¢ 49, 725.11 arose from a Micro Finance/Customer relationship whereby the Plaintiff allegedly invested his money with the Defendant for a specified period subject to terms. The Plaintiff is also asking for interest on the amount said to have been invested and damages for breach of contract.
In his statement of claim filed on 13/02/2015, the Plaintiff asserted that on 27/12/2012, he invested an amount of GH¢20,000.00 with the Defendant for a period of 182 days at an interest rate of 18% per investment period. On the maturity date of 27/06/2013, the Plaintiff averred that he rolled over the principal amount, accrued interest and topped the investment up with the sum of GH¢ 10,000.00. He also indicated that he added GH¢9,600.00 to the amount invested earlier and that brought his total investment to GH¢ 45,000.00. His case is that the Defendant failed to repay his money on the agreed terms upon maturity and has continuously refused to do so.
The Defence put up by the Defendant is that the Plaintiff made an informed decision to invest his money in the Capital Market but not in the Defendant's products. As such, the Defendant averred that it is not under any obligation to repay the Plaintiff's lost investments.
The main issue for determination is whether or not the Plaintiff invested in Defendant's Products or in the Capital Market.
To determine this issue, the court is enjoined to weigh the evidence adduced by both parties on the balance of probabilities and find whose case is deserving of a favourable verdict. This principle of proof in civil suits has its basis on sections 11(4) and 12 of the Evidence Act 1975, NRCD 323 which states as follows:
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
Sec.12. Proof by a preponderance of the probabilities
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
In so doing, all the evidence on record must be considered, be it that of the Plaintiff or the Defendant. Indeed, Ansah JSC explained the principle in the case of Takoradi Flour Mills v Samir Farris (2005/2006) SCGLR 883 as follows:
A tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial decision. The essential thing is that the witness is credible by the standards set in section 80(2) of the Evidence Decree, 1975...
The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any, before him to consider for his decision".
At page 884 (holding 5), the Court stated further as indicated below:
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..."
This court made orders for the filing of witness statements as far back as 06/10/2015. The Plaintiff complied and caused his lawful attorney to file a witness statement which was duly served on the Defendant on 14/12/2015. However, the Defendant failed to file its witness statement. Hearing notice was served on Counsel for the Defendant for the trial to commence on 29/02/2016 but he also neglected to come to court. On the date set for hearing, the court had no other option than to proceed without the Defendant and his Counsel. At the end of the day, the court will be left with only the evidence of the Plaintiff to consider.
The Plaintiff's lawful attorney relied on his witness statement filed on 02/12/15. The oral evidence as contained in the witness statement was a repetition of the averments contained in the Plaintiff's statement of claim. In addition, the Plaintiff's lawful attorney tendered documents in support of the Plaintiff's case.
From the Plaintiff's exhibit "CD 2", an amount of GH¢ 20,000.00 was invested with the Defendant for 182 days at an interest rate of 18%. The due date was 28/06/13 and the amount payable inclusive of interest was GH¢ 23,600.00.
Exhibit " CD 3" also indicates that on 27/06/13, an amount of GH¢ 30,000.00 was invested for 182 days . The applicable interest rate was 18% and the amount payable on the due date, 28/12/13, was GH¢ 35,400.00.
Again, exhibit " CD 4" shows that on 30/12/13, the Plaintiff invested GH¢45,000.00 for a 91-day period at the interest rate of 10.50%. The investment matured on 31/03/14 and the total amount payable to the Plaintiff was GH¢49, 725.11.
Since the Defendant failed to file a witness statement and its counsel did not also show up in court to cross-examine the Plaintiff's lawful attorney, the court has only the Plaintiff's evidence to evaluate as earlier stated. On the face of exhibits " CD2" , "CD 3" and "CD 4", there is not the slightest indication that the Plaintiff invested his money in any Capital Market. I find that the Plaintiff invested his money in the Defendant's products for the periods indicated therein and the Defendant undertook to repay the principal amounts invested plus interest. Yet, there is no evidence that the Defendant has repaid the principal amount as per exhibit "CD4" and the accrued interest to the Plaintiff.
I accept the Plaintiff's evidence that as at 31/03/14, the Defendant was liable to pay him the sum of GH¢ 49, 725.11 representing the principal amount invested and the accrued interest. However, after 31/03/14, there was no agreement to roll over the amount payable even though the Defendant has unlawfully withheld the said amount from the Plaintiff. Put differently, the Plaintiff has been denied of the use of this money and he is certainly entitled to interest thereon.
In the absence of any agreement as regards interest rate after the maturity period, 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.
Is the Plaintiff entitled to any damages for breach of contract? Certainly, a contract between the Plaintiff customer and the
Defendant Micro Finance Company can be inferred from exhibits "CD2", " CD 3" and "CD 4". Yet, the Defendant failed to fulfill its obligation when the investment evidenced by exhibit "CD 4" matured. This amounts to a breach of contract on the part of the Defendant.
Since no special damages has been specifically pleaded, it is obvious that the Plaintiff is asking for general damages. The law is that general damages need not be proved by evidence because it arises by law from every infringement of an absolute right as was held by the Supreme Court in Delmas Agency Ghana Ltd v Food Distributors International Ltd (2007-2008) SCGLR 748 at 760 thus:
General damages is such as the law will presume to be the probable or natural consequences of the defendant's act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded..." See also
AG V Faroe Atlantic Co. Ltd. (2005/2006) SCGLR 271.
But in the instant case, the Plaintiff has been compensated for the loss of use of his money by an award of interest. In the circumstance, I will award an amount of GH¢1000.00 as nominal damages against the Defendant for breach of contract.
Accordingly, I enter judgment in favour of the Plaintiff against the Defendant in the sum of GH¢49,725.11 plus interest at the Prevailing Bank Rate from 01/04/14 to the date of delivery of judgment; post judgment interest from the date of delivery of judgment to the date of final payment and nominal damages of GH¢ 1000. The 91 day Bank of Ghana Treasury Bill rate is to be used as the prevailing Bank Rate.
Even though the trial was very short, the Defendant's persistent absence from court put the Plaintiff to a great deal of expense. For instance, several hearing notices had to be served on Defendant's counsel outside Kumasi. I have taken into consideration the provisions of Order 74 of C.I. 47 on the award of cost and cost awarded during the pendency of the suit. I award cost of GH¢ 3000.00 against the Defendant in favour of the Plaintiff.