AFRICA LIFE ASSURANCE LIMITED VRS. GOLDEN LINK SAVINGS & LOANS (CM/RPC/0520/2022) [2024] GHAHC 65 (26 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD IN ACCRA ON TUESDAY, THE 26TH OF MARCH 2024 BEFORE HIS LORDSHIP FRANCIS OBIRI ‘J’ SUIT NO. CM/RPC/0520/2022 AFRICA LIFE ASSURANCE LIMITED - PLAINTIFF VS GOLDEN LINK SAVINGS & LOANS - DEFENDANT ---------------------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------------------- The Plaintiff per its Writ of Summons filed on 13th June 2022, claims against the Defendant as follows: a. Recovery of Three Million, Three Hundred and Thirty-Two Thousand, Six Hundred and Ninety-Three Ghana Cedis (GHS 3,332,693.00) as at 21st March 2022. b. Interest on the sum of Three Million, Three Hundred and Thirty-Two Thousand, Six Hundred and Ninety-Three Ghana Cedis (GHS 3,332,693.00) as at 21st March 2022 until date of final payment. c. General damages for breach of contract. d. Cost inclusive of solicitor’s legal fees. The Writ of Summons and the Statement of Claim were served on the Defendant on 21st June 2022. The Defendant entered appearance on 24th June 2022, and filed its Statement of Defence on 19th July 2022. The parties could not settle the matter at the pre-trial 1 | P a g e settlement conference. Therefore, the following issues were set down for trial by the court on 24th March 2023. 1. Whether or not on the expiration of the maturity date, the Defendant paid in full the maturity interest and the principal sum invested and rolled over in full investment with the consent of the Plaintiff. 2. Whether or not the Defendant is indebted to the Plaintiff in the sum of Three Million, Three Hundred and Thirty-Two Thousand, Six Hundred and Ninety- Three Ghana Cedis (GHS 3,332,693.00). 3. Any other issue arising from the pleadings. The court ordered the parties to file their pre-trial checklists, witness statements and all documents they intend to rely upon in the case on 16th November 2023. The court notes on 16th November 2023, and hearing notice were served on counsel for the Defendant on 6th December 2023. The case was adjourned to 8th December 2023 for Case Management Conference. Counsel for the Defendant was served with hearing notice for the Case Management Conference. He was served on 6th December 2023. The Defendant and its counsel were however absent for the Case Management Conference on 8th December 2023. The Defendant also failed to file its pre-trial checklist; witness statement etc. as ordered by the court on 16th November 2023. The case was adjourned to 5th March 2024 for hearing. Counsel for the Defendant was served with hearing notice on 26th February 2024 for the hearing on 5th March 2024. However, the Defendant and its counsel failed to appear in court for the hearing. When the case came up for hearing, the Plaintiff’s representative testified under oath as follows: He is called Clifford Yeboah. He lives at H/No. 138 Mooneye Street, Taifa, Accra. 2 | P a g e He is the Head of Finance at African Life Assurance Limited, a company incorporated under the Laws of Ghana. The Defendant is a company registered in Ghana and licensed by Bank of Ghana (BOG) to operate as a deposit taking Non-Bank Financial Institution since October 2016. He said on 16th March 2018, the Plaintiff placed an investment in the sum of Two Million, Eight Hundred Thousand Ghana Cedis (GHS 2,800,000.00) with the Defendant. The investment placed was at an interest rate of 26% per annum and was for a term of three hundred and sixty-five (365) days, commencing from 16th March 2018 and ending on 16th March 2019. On the maturity date, the Defendant was to pay maturity interest in the sum of GHS 728,000.00 to the Plaintiff. The Defendant was also to pay maturity principal of Three Million, Five Hundred and Twenty-Eight Thousand Ghana Cedis (GHS 3,528,000.00) payable quarterly for the term of the investment. The Plaintiff representative stated, that on the expiration of the maturity date, the Defendant failed to pay the full maturity interest and the principal sum invested, and rolled over the investment when the Plaintiff had expressly notified the Defendant that it would not roll over its investment. According to him, on 20th September 2021, the Defendant again rolled over and reinvested Plaintiff’s money in the sum of Three Million, Sixty-Five Thousand, Seven Hundred and Twenty-Four Ghana Cedis (GHS 3,065,724.00) with the Defendant. The investment placed was at an interest rate of 17.5% per annum and was for a term of one hundred and eighty-two (182) days commencing from 20th September 2021, and ending on 21st March 2022. On the maturity date on 21st March 2022, the Defendant was to pay to the Plaintiff maturity value of Three Million, Three Hundred and Thirty-Two Thousand, Six 3 | P a g e Hundred and Ninety-Three Ghana Cedis, and Twenty-Nine Pesewas (GHS 3,332,693.29). However, the Defendant failed to pay the money to the Plaintiff. He said, by a letter dated 22nd April 2022, solicitor for the Plaintiff wrote a demand letter for the maturity value of Three Million, Three Hundred and Thirty-Two Thousand, Six Hundred and Ninety-Three Ghana Cedis and Twenty-Nine Pesewas (GHS 3,332,693.29). However, the Defendant has still failed to pay the principal sum and the interest. The Plaintiff representative prayed the court to grant the Plaintiff’s reliefs as endorsed on the Writ of Summons. The Plaintiff representative tendered various documents in support of the Plaintiff’s case. The documents were admitted and marked as exhibits without objection. When the Plaintiff representative concluded his evidence, he was not cross-examined. This was because the Defendant and its counsel failed to appear in court after being served with hearing notice on 26th February 2024. In the case of ANKUMAH v CITY INVESTMENT CO. LTD [2007-2008] SCGLR 1064, the Supreme Court held per Adinyira JSC (as she then was), at page 1076 as follows: “In any event, the defendant after several attempts was finally served but failed to appear in court. The trial court therefore rightly adjourned the case for judgment. A court is entitled to give a judgment in default, as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then it would be justifiable to assume that he does not wish to be heard.” See also, REPUBLIC v COURT OF APPEAL; EX PARTE EASTERN ALLOY CO. LTD [2007-2008] 1 SCGLR 371 4 | P a g e It is therefore humble view, that since the Defendant and its counsel failed to appear in court after being served with hearing notices, the Defendant waived its right to be heard. The law is also settled, that the right to be heard is an inalienable right which should not be denied a party. However, if a party is aware of a hearing date but fails to appear in court, it means, he has waived his right to be heard. See: JULIUS SYLVESTER BORTEY ALABI v PARESH & 2 ORS [2018] 120 GMJ 1 SC REPUBLIC v HIGH COURT (FAST TRACK DIVISION) ACCRA, EX PARTE STATE HOUSING CO. LTD (NO.2) (KORANTEN-AMOAKO – INTERESTED PARTY) [2009] SCGLR 185 REPUBLIC v HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA, EX PARTE AKITA (MANCELL-EGALA & ATTORNEY GENERAL – INTERESTED PARTIES) [2010] SCGLR 374 Even in criminal cases where the stakes are high, a court can proceed to hear a case in the absence of an accused person, if he is aware of a hearing date but he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial. This is sanctioned under Article 19(3) of the 1992 Constitution. Therefore, the Defendant and its counsel waived their right to be heard. The Defendant’s case was thus reduced to its pleadings which do not make a case. See: ASANTE APPIAH v AMPONSA ALIAS MANSAH [2009] SCGLR 90 The position of the law is settled by a number of authorities, that when a party makes an averment and the averment was not denied, no issue is joined and no further evidence need to be led on that averment. Similarly, when a party has given evidence 5 | P a g e of a material fact and was not cross-examined upon it, he needs not call further evidence to establish that fact. It implies admission. See: KUSI & KUSI v BONSU [2010] SCGLR 60 FORI v AYIREBI AND OTHERS [1966] GLR 627 SC DANIELLI CONSTRUCTION LTD. v MABEY & JOHNSON LTD [2007-2008] 1 SCGLR 60 WESTERN HARDWOOD ENTERPRISES LIMITED AND ANOTHER v WEST AFRICAN ENTERPRISES LTD [1998-99] SCGLR 105 It is therefore my opinion, that to the extent that the Plaintiff representative was not cross-examined, his evidence was not denied. In civil cases when no crime is alleged, a plaintiff is to win his case on the preponderance of probabilities, under sections 11(4) and 12(1) of the Evidence Act, 1975 (NRCD 323) See also, YORKWA v DUAH [1992-1993] 1 GBR 278 CA TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 However, where a defendant files a counterclaim in an action, then he is also to prove his counterclaim on the preponderance of probabilities. This is because he is the plaintiff in respect of the counterclaim. However, this is not the situation in the instant case. See: FOSUHENE v ATTA WUSU [2011] 1 SCGLR 273 IN RE WILL OF BREMANSU; AKONU-BAFFOE & ORS v BUAKU & VANDYKE (SUBSTITUTED BY) BREMANSU [2012] 2 SCGLR 1313 VERONICA OPOKU v MARY LARTEY [2018] 119 GMJ 244 SC 6 | P a g e NORTEY (NO.2) v AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION & ORS (NO.2) [2013-2014] 1 SCGLR 703 I am therefore of the view, that the Plaintiff per its evidence and the exhibits has proved its case on the preponderance of probabilities against the Defendant. From the above analysis, my judgment is that the Plaintiff is entitled to all the reliefs it is claiming against the Defendant. The Plaintiff is to recover from the Defendant cash, the sum of GHS 3,332,693.00. I will award interest on the GHS 3,332,693.00 from 21st March 2022, until the date of final payment at a simple interest rate. In respect of relief C, the law is that general damages are presumed to be the natural or the probable consequence of the defendant’s act. The law implies general damages in every infringement of an absolute right of a plaintiff by defendant. Therefore, once the Defendant did not pay the Plaintiff within the time it was to pay the Plaintiff’s investment, the Plaintiff would be entitled to general damages against the Defendant. See: DELMAS AGENCY GHANA LTD v FOOD DISTRIBUTORS INTERNATIONAL LTD [2007-2008] SCGLR 748 NATIONAL INVESTMENT BANK & WESTEC SECURITY v ROM ENGINEERING LTD [2015-2016] 1 SCGLR 766 I will therefore award the Plaintiff general damages in the sum of GHS 30,000.00 against the Defendant. I will also award cost of GHS 20,000.00 in favour of the Plaintiff against the Defendant. The Plaintiff action therefore succeeds. SGD. FRANCIS OBIRI (JUSTICE OF THE HIGH COURT) 7 | P a g e COUNSEL ALEX OWOO FOR THE PLAINTIFF FREDA LARTEY FOR THE DEFENDANT AUTHORITIES 1. 2. 3. 4. 5. 6. 7. 8. ANKUMAH v CITY INVESTMENT CO. LTD [2007-2008] SCGLR 1064 REPUBLIC v COURT OF APPEAL; EX PARTE EASTERN ALLOY CO. LTD [2007-2008] 1 SCGLR 371 JULIUS SYLVESTER BORTEY ALABI v PARESH & 2 ORS [2018] 120 GMJ 1 SC REPUBLIC v HIGH COURT (FAST TRACK DIVISION) ACCRA, EX PARTE STATE HOUSING CO. LTD (NO.2) (KORANTEN-AMOAKO – INTERESTED PARTY) [2009] SCGLR 185 REPUBLIC v HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA, EX PARTE AKITA (MANCELL-EGALA & ATTORNEY GENERAL – INTERESTED PARTIES) [2010] SCGLR 374 ASANTE APPIAH v AMPONSA ALIAS MANSA [2009] SCGLR 90 KUSI & KUSI v BONSU [2010] SCGLR 60 FORI v AYIREBI AND OTHERS [1966] GLR 627 SC 9. DANIELLI CONSTRUCTION LTD. v MABEY & JOHNSON LTD [2007- 2008] 1 SCGLR 60 10. WESTERN HARDWOOD ENTERPRISES LIMITED AND ANOTHER v WEST AFRICAN ENTERPRISES LTD [1998-99] SCGLR 105 11. YORKWA v DUAH [1992-1993] 1 GBR 278 CA 12. TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 13. FOSUHENE v ATTA WUSU [2011] 1 SCGLR 273 8 | P a g e 14. IN RE WILL OF BREMANSU; AKONU-BAFFOE & ORS v BUAKU & VANDYKE (SUBSTITUTED BY) BREMANSU [2012] 2 SCGLR 1313 15. VERONICA OPOKU v MARY LARTEY [2018] 119 GMJ 244 SC 16. NORTEY (NO.2) v AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION & ORS (NO.2) [2013-2014] 1 SCGLR 703 17. DELMAS AGENCY GHANA LTD. v FOOD DISTRIBUTORS INTERNATIONAL LTD. [2007-2008] SCGLR 748 18. NATIONAL INVESTMENT BANK & WESTEC SECURITY v ROM ENGINEERING LTD [2015-2016] 1 SCGLR 766 9 | P a g e