IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
LINDA LYDIA - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES - (Defendants)
DATE: 23RD MARCH, 2016
SUIT NO: BFS/207/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
DIANA ADU DANQUAH FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
On 20/02/2015, the Plaintiff herein instituted the instant action against Noble Dream Financial Services Limited for the Recovery of the sum of GH¢38,675.00 plus interest at the rate of 10.5% per 91 days from 15th January, 2014 till date of final payment.
The Plaintiff's case is simple and straight forward. She alleged that on 14/10/2013, she invested a total amount of GH¢38,675.00 with the Defendants at an interest rate of 10.50% for 91 days and she was given a certificate of investment to that effect. The Plaintiff further asserted that the Defendant has failed to repay the money together with the accrued interest since the maturity of the investment on 15/01/2014.
By its statement of defence filed on 13/3/15, the Defendant admitted that the Plaintiff is its customer but reiterated that the Plaintiff invested her money in the capital market but not in the Defendant's products. The Defendant also averred that the economic down turn of the Ghanaian economy is the reason for its inability to repay the Plaintiff and that it is not under any obligation to repay the Plaintiff's lost investment.
The Court has been invited to determine two issues: (i) whether or not the Plaintiff authorized the defendant to invest her money in the capital Market? and
(ii) whether or not the Defendant is indebted to the Plaintiff?
From the pleadings, the evidential burden as well as the burden of persuasion of the first issue rests on the Defendant who averred that the Plaintiff invested her money in the capital market but not in the defendant's products. This assertion was denied by the Plaintiff.
Based on the provisions of sections 11(4), 12(1) & (2) of the Evidence Act, 1975 NRCD 323, the Defendant must lead credible evidence from which the court can find on the balance of probabilities that its assertion is more probable than not. This degree and standard of proof has been applied in several cases. These include Majolagbe v Larbi (1959) GLR 190 at 192; Zambrama V Segbedzie (1991) 2 GLR 221;Yaa Kwesi v Arhin
Davis(2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).
The Defendant Company failed to file its witness statement as ordered by the court on 30/10/2015. On 04/02/2016, the court granted the Defendant an extension of time to file its witness statement by 09/02/2016. Even though counsel for the Defendant was present in Court when that order was made, the Defendant did not file any witness statement. On 17/02/2016 when the trial commenced, Counsel for the Defendant only cross-examined the Plaintiff on her witness statement which she relied on in Court.
The law is that a defendant may choose not to give evidence but when that happens, the court will be left with only the evidence of the Plaintiff to evaluate. Thus, Brobbey JSC in Re Ashalley Botwe
Lands; Adjetey Agbosu & Ors v Kotey & Ors ( 2003-2004) SCGLR 420 made the following observation as regards the burden of proof:
... 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 same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff.
If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant ..."
In the case at hand, the Defendant who desired the court to find that the Plaintiff rather invested her money in the capital market failed to file its witness statement and did not adduce any evidence whatsoever in court. Its lawyer sought to discredit the testimony of the Plaintiff during cross-examination by indicating that the Plaintiff is not even known to the Defendant because by exhibit "A", the customer whom the Defendant dealt with is ROREDO ENTERPRISE. Whilst under cross-examination, the Plaintiff told the court that ROREDO ENTERPRISE is her registered business name and she invested the money in that name. Counsel could not challenge the Plaintiff on that point any further.
The law is that a business name registered under the Registration of Business Names Act, 1962 (Act 151) does not confer any legal personality distinct from the person (human being) who carries out business under that name. This principle was extensively discussed in Barclays Bank of Ghana Ltd v Lartey ( 1978) GLR 282 per Wiredu J. ( as he then was).
Indeed, the instant action was commenced in this name: Linda Lydia Appiagyei (Trading under the name and style ROREDO ENT.). There could not have been any better rendition than what the Plaintiff did.
And the Defendant readily admitted in paragraph 2 of its statement of defence that the Plaintiff is its customer. So the lengthy cross-examination in an attempt to distinguish Linda Lydia Appiagyei from ROREDO ENTERPRISE is of no consequence.
On the totality of the evidence on record, particularly the Plaintiff's evidence in chief and answers during cross-examination, i accept the Plaintiff's case that she carried on business under the Business name ROREDO ENTERPRISE and that she invested her money in the Defendant's product using her business name as demonstrated clearly by exhibit A. From exhibit A, I find that the Plaintiff invested her money in the Defendant's product for a fixed period of 91 days irrespective of the fact that the investment was described as "NOBLE TRUST". I therefore conclude that the Plaintiff did not authorize the Defendant to invest her money in the Capital Market.
I now move to the second issue, that is, whether or not the Defendant is indebted to the Plaintiff? From the statement of defence filed by the Defendant, it is not in dispute that whatever monies the Plaintiff who trades under the business name ROREDO ENTERPRISE invested in the Defendant's product has not been repaid to her. What then is the obligation or liability of the Defendant to the Plaintiff herein? On this issue, the burden of proof rests on the Plaintiff who has dragged the Defendant to court for repayment.
The Plaintiff tendered a certificate of investment, exhibit A, to support her oral testimony that she invested an amount of GH¢ 35,000.00 with the Defendant Company for a period of 91 days at an interest rate of 10.5% per the tenure. On the face of exhibit A, the amount payable on maturity, 15/01/14, is GH¢38,675.00 and contractually, the Defendant is liable to pay that amount to the Plaintiff.
There has not been any justification on the part of the Defendant to hold on to the Plaintiff's money after the maturity date. Therefore, the Defendant is liable to pay interest on the said amount from 16/01/14. I must point out that the interest rate agreed upon by the parties ceased on the maturity date. Having found that the Plaintiff is entitled to interest after the maturity date, the applicable rate 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 sum of GH¢ 38, 675.00 together with interest at the prevailing bank rate from 16/01/14 till date of delivery of judgment. I further award post judgment interest on the sum of GH¢ 38, 675.00 at the prevailing Bank Rate from the date of delivery of Judgment till date of final payment. For the avoidance of doubt, the 91 days Bank of Ghana Treasury Bill Rate is to be used as the Prevailing Bank Rate.
I have reviewed the provisions of Order 74 of the High Court ( Civil Procedure) Rules, 2004 on the award of cost. I award cost of GH¢ 3000 against the Defendant in favour of the Plaintiff.