IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
GEORGE KOFI NTIM - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES LTD -(Defendant)
DATE: 29TH NOVEMBER, 2016
SUIT NO: BFS/402/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
This judgment is in respect of the recovery of monies said to have been invested in a fixed or time deposit product of the Defendant micro-finance company described as "Noble Trust".
The case of the Plaintiff is that he was induced by the numerous advertisements and marketing strategies of the Defendant company to deposit GHS 5,000.00 and GH¢ 8,000.00 on 19/12/2003 and 08/03 /2014 respectively at an agreed interest rate of 10.5% for three months. However, after the respective maturity dates and subsequent persistent demands, the defendant has failed to pay him the principal amounts invested totaling GH¢ 14, 365.00 plus the accrued interest.
In the statement of defence filed on 7/11/14, the Defendant company alleged that it has never had any dealings with the Plaintiff, he is not one of its customers and the company is not in any way indebted to him. The Defendant further alleged that the Plaintiff has taken advantage of its operational difficulties and misunderstanding with some of its customers to overreach the company, and unjustly enrich himself.
After a failed attempt at settlement, two main issues were set down for this trial. These are:
Whether or not the Plaintiff was Defendant's customer?
Whether or not the Plaintiff is entitled to his claim?
Both parties failed to comply with the orders for the filing of witness statements and were given extension of time to do so. The Plaintiff did comply with the second order and filed his witness statement on 29/05/2015, but the Defendant failed to do so even though the company was given a further extension of time. The lawyers appeared before the court for a case management conference on 17/07/2015 where counsel for the Defendant informed the court that they do not intend filing any witness statement. The case was then adjourned to 27/07/2015 at 11am for hearing but the trial could not commence on the said date. Counsel for the defendant was also absent without reason.
Eventually, 9/11/2016 was set as the hearing date with an order that a hearing notice be served on counsel for the Defendant. By an affidavit of service deposed by Kwabena Gyan, a senior bailiff attached to this court, a hearing notice was duly served on counsel for the Defendant on 24/10/2016. Neither the Defendant nor its lawyer came to court on 09/11/2016 and the court had no other alternative than to proceed to hear the case of the Plaintiff as provided for under Order 36 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 as amended by C.I. 87.
The relevant provision is Order 36 rule 1 (2) (a) which reads:
"(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."
At the trial, the Plaintiff relied on his witness statement filed on 29/5/15 and counsel for the Defendant who elected not to come to court was not available to cross-examine him on his evidence-in-chief. The Plaintiff tendered various documents to support his assertions contained in his statement of claim filed on 10/07/14.
His Exhibit A is an investment certificate issued to him by the defendant when he deposited an amount of GH¢ 5,000.00 on 19/12/13 under the reference number 20-120100813-01. From the said document, the interest rate was 10.50% for the 91 days investment period. Interest per tenure was GHS 525.00 and the due date was 20/03/2014.
Exhibit B is also an investment certificate issued by the defendant to the plaintiff when he deposited the sum of GH¢ 8000.00 on 03/03/2014 under the same reference number 20-120100813-01 on the same terms as the first investment. Interest per tenure was however GH¢ 840.00 and the maturity date was 04/06/2014.
The Defendant never pleaded forgery of documents by the Plaintiff in its statement of defence and it is reasonable to infer that these investment certificates emanated from the Defendant company. There is also no evidence to show that after the maturity dates in issue, the Defendant company paid over the principal sums invested together with the accrued interests to the plaintiff. Therefore, I do not see the Plaintiff's claims as an attempt to overreach the Defendant company.
The evidential burden as to whether or not the Plaintiff is a customer of the Defendant company rested on the Defendant who chose not to testify and also cross-examine the Plaintiff on his evidence. That notwithstanding, the Plaintiff who has brought the Defendant to court must prove that he is entitled to the reliefs he seeks. As was held in the case of 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..."
For the court to determine whether a party has been able to prove his or her case, the court is enjoined to consider all the evidence on record and weigh the same on the balance of probabilities as provided for under sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. These provisions were applied in the case of Takoradi Flour Mills v Samir Farris (2005/2006) SCGLR 882. At page 884 (holding 5), this was what the Supreme Court said:
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 the 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 more probable of the rival versions and is deserving of a favourable verdict..."
The question that arises at this point is, whether exhibits 'A' and 'B' are sufficient proof that the plaintiff is, or was, or has ever been a customer of the Defendant company? This issue of depositors being customers of the Defendant micro-finance company has come before me on several occasions and I have always approved of the decision in the English case of Commissioner of Taxation v English, Scottish and Australian Bank Ltd (1920) AC 683. One of the questions which arose in an action for conversion brought by the Commissioners of Taxation as true owners of a cheque against the collecting Bank was whether the rogue had become that bank’s customer by reason of the single transaction involved. Lord Dunedin observed at page 687 thus:
“The word ‘customer’ signifies a relationship in which duration is not of the essence. A person whose money has been accepted by a bank on a footing that they undertake to honour cheques up to the amount standing to his credit is … a customer of the bank… irrespective of whether his connection is of short or long standing…”
Although the Defendant herein has been described as a Micro Finance Institution, the relationship that existed between the company and its customers is akin to a banker/customer relationship such that the moment the Defendant accepted a deposit from the Plaintiff and assigned an account number or reference number as they chose to describe it, the Plaintiff became its customer.
It was the duty of the Defendant company to know all its customers at all times. In other words, the account had to be "KYC" ( Know Your Customer) compliant. This is a prudent business practice but it appears to me that the Defendant company's business practices fell short of that reasonable expectation and they must bear the consequences thereof.
On the totality of the evidence presented to this court by the Plaintiff, he has succeeded in proving that he is a customer of the Defendant micro finance company and I so find.
Is the Plaintiff entitled to his claims? From the endorsement on the writ of summons, the reliefs he is seeking can be summarized as follows:
Recovery of the sum of GH¢ 14, 365
Interest on the said sum from 10/06/2014
Cost including solicitors fees.
Obviously, any person who invests in a time deposit product irrespective of how it is described expects to be paid back his or her investment together with its 'fruits'. Indeed, there exists a contractual obligation on the defendant bank to make the said payments to the plaintiff. In the case at hand, the amounts which fell due on 20/03/2014 and 04/06/2016 respectively add up to GH¢ 14, 365.00 and that is the amount endorsed on the plaintiff's writ of summons. The Defendant is liable to pay this amount to the Plaintiff.
Again, the Plaintiff has been denied the use of this money after the respective maturity dates; there was also no justification on the part of the Defendant to hold onto the Plaintiff's money. Therefore, on the authority of Akoto v Gyamfi Addo (2005/2006) SCGLR 1018, the Plaintiff is entitled to interest on the sum of GHS 14, 365.00. I would have thought that the Plaintiff will ask for interest the day following the maturity dates. However, he has asked for interest from 10/06/2014 and the court will grant the same.
Accordingly, judgment is entered against the defendant in favour of the plaintiff in the sum of GHS 14, 365.00 and interest thereon at the prevailing bank lending rate from 10/06/2014 to the date of delivery of judgment; and post judgment interest at the same rate till date of final payment. For the avoidance of doubt, the Bank of Ghana 91 days Treasury Bill rate is to be used as the prevailing bank rate.
The defendant has indeed frustrated the plaintiff in this case by unduly delaying the trial. The plaintiff's witness statement was filed as far back as May, 2015 and as I have already indicated, the defendant after several prayers to the court to be given extra time to file its witness statement eventually elected not to do so. I have considered the provisions under Order 74 of C.I. 47 on the award of cost and I award cost of GHS 3000.00 against the defendant in favour of the plaintiff.