BANNOR OSEI vs. NOBLE DREAM FINANCIAL SERVICES [2016]DLHC3768

Date	2016-05-04
Suit No.	SUIT NO.BFS/229/15
Citation No.	[2016]DLHC3768

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

DOUGLAS OBENG FOR PLAINTIFF.

KWASI ADU MANTE FOR DEFENDANT.

[2016]DLHC3768
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">BANNOR
OSEI<o:p></o:p></a>vs.<o:p></o:p>NOBLE DREAM FINANCIAL SERVICES<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO.BFS/229/15&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 4TH MAY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>DOUGLAS
OBENG FOR PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWASI ADU MANTE FOR DEFENDANT.<o:p></o:p>

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF
THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>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.<o:p></o:p>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.<o:p></o:p>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.&nbsp; 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.<o:p></o:p>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.<o:p></o:p>As
Brobbey JSC put it in Re Ashalley Botwe
Lands; Adjetey Agbosu &amp; Ors v
Kotey &amp; Ors ( 2003-2004) SCGLR 420<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; "
... 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..."<o:p></o:p>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.&nbsp; 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&nbsp; two investment certificates as exhibits
"A" and "B".&nbsp;
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.<o:p></o:p>From
exhibit A, I find that the plaintiff deposited the sum of GH ¢20,010.00&nbsp; 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.&nbsp; The Plaintiff was entitled
to be paid a total amount of GH¢22,100.00 on the said date. However, I gather
from the&nbsp; second investment certificate
in the exhibit B series&nbsp; that&nbsp; 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.<o:p></o:p>The
exhibit B series constitute a binding agreement on the parties thereto. Hence,
the defendant is under a contractual obligation to r</main>