IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
OKRU BOATENG - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICE LTD. - (Defendant)
DATE: 13TH MAY, 2016
SUIT NO: BFS/218/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
DENNIS KUMAH KWARKYE FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
This is a suit in which the plaintiff seeks to recover an amount of GH¢ 44, 836.48 together with interest and general damages for breach of contract from the defendant. The defendant denied the assertions contained in the plaintiff 's statement of claim, but following the refusal of the defendant to file its witness statement as ordered by the court, its defence was struck out in accordance with order 32 rule 7A (3) (b)of the High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I. 87).
The court has been invited to determine three issues, namely:
Whether or not the plaintiff is a customer of the defendant final institution?
Whether or not the plaintiff invested GH¢44, 836.48 in the defendant's institution?
Whether or not the plaintiff is entitled to his claim?
Counsel for the defendant was served with a hearing notice to attend the trial on 06/04/2016, but very characteristic of him, he failed to show up. No reasons were given for the absence of the defendant and its counsel. The court proceeded to allow the plaintiff to prove his claims at that point.
At the trial, the plaintiff relied on his witness statement filed on 15/07/15 as his evidence-in-chief wherein he testified that following a radio announcement inviting prospective customers to invest in the defendant's products, he opened an account with the defendant's branch at Maakro, and deposited an amount of GH¢ 22,000 . Later he deposited the sum of GH¢7000.00. He was initially assigned an account number- SA 0001141; and subsequently, another account number- 20-08011141-01 was generated for him. He was given a certificate showing the amount invested as fixed deposit, the rate of interest he was entitled to earn, and the maturity date. The plaintiff further testified that he is unable to trace his first certificate of deposit but tendered in evidence three certificates issued to him when the money was re-invested. In all, the plaintiff said his investments covered the period 31 October, 2013 through to 06/08/ 2014 and the total amount due him inclusive of interest as of 06/08/2014 is GH¢ 44, 836.48.
In support of the above oral evidence, the plaintiff tendered various investment certificates and deposit slips indicating monies paid into his account with the defendant as exhibits OA to OA6.
Even though the Defendant elected not to participate in this trial, the onus of proof still rests on the plaintiff to show that he is entitled to the reliefs he seeks. He is required to introduce such evidence so that on the totality of the evidence on record, the court will find his story to be more probable, than not. 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..."
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..."
Ordinarily, it is the defendant who would have been responsible to prove whether or not the plaintiff is its customer, having raised that point. However, since the defendant has neglected to participate in this trial, i will look at the evidence adduced by the plaintiff to see if on the face of it, a ruling can be made in his favour on that issue.
Exhibits OA and OA1 are pay-in-slips emanating from the defendant. The account name stated thereon is Okru Boateng and the account numbers are: (i) 20-080101141- 01. Are these sufficient for the plaintiff to be described as a customer of the defendant?
In 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…”
I did approve of this statement in my earlier decisions involving Noble Dream Financial Services and will do the same in this case. The defendant has been described as a Micro Finance Institution. It can be gleaned from the evidence on record that the defendant as part of its activities accepted deposits from the general public, including the plaintiff. The relationship so created between the defendant and its customers is like that of a customer/banker relationship. By virtue of the deposits made by the plaintiff, and which were accepted by the defendant under the account number generated for him, he became a customer of the defendant and I so find.
Next, i move to the issue of whether the plaintiff invested GH¢ 44, 836.48 in the defendant's institution? The plaintiff on whom the burden of proof rests, did tender the latest details of his investments as exhibit OA6. On the face of that document, he invested an amount of GH¢ 40,576.00 with the defendant for a period of 91 days; the interest per tenure was 10.50%; the interest at maturity was GH¢ 4, 260.48; and the total amount payable to the plaintiff on the due date of 06/08/2014 was GH¢44, 836.48. It is this amount which the plaintiff has claimed by his writ of summons.
In the absence of contrary evidence to the effect that the defendant has paid out this money to the plaintiff, I accept the plaintiff 's story that the money he invested with the defendant remains unpaid as the truth. I therefore find that the plaintiff invested the sum of GH¢40, 576.00 with the defendant; and together with the accrued interest, the defendant owes the plaintiff the amount endorsed on the writ of summons.
The plaintiff has also asked for general damages. Obviously, from the evidence before me, the defendant did breach the agreement it had with the plaintiff as a result of which the plaintiff has suffered a detriment. The law is that general damages arises from every infringement of an absolute right and need not be proved by evidence. And, as Dr Seth Twum JSC put it in Delmas Agency Ghana Ltd v Food Distributors International Ltd ( 2007/2008) SCGLR 748 at 760:
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..."
In the present case, the plaintiff has asked for interest which will adequately compensate him for the loss of use of his money. I will therefore award him nominal damages of GH¢ 500.00.
Accordingly, I enter judgment against the defendant in favour of the plaintiff for the sum of. GH¢ 44, 836.48 and general damages of GH¢ 500.00.
It is to be noted that by the agreement between the parties, the 10.50% interest was for 91 days only. It ended on the maturity date of 06/08/14. Beyond that date, there was no agreement on the interest rate. The defendant however used or benefited from the use of the plaintiff 's money without justification. Certainly, the plaintiff is entitled to interest on his money after the maturity date on the authority of Akoto v Gyamfi Addo ( 2005-2006) SCGLR 1018. 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.
Therefore, I order the defendant to pay interest on the sum of GH¢ 44, 836.48 at the prevailing bank rate from 07/08/2014 to the date of delivery of judgment. Again, I award post judgment interest on the sum of GH¢ 44, 836.48 at the prevailing bank rate from the date of delivery of judgment till date of final payment. The Bank of Ghana 91 days treasury bill rate is to be used as the prevailing bank rate.
Cost of GH¢3,000.00 is awarded against the defendant.