KWEITSU VRS NDK FINANCIAL SERVICES (C1/105/2023) [2023] GHACC 850 (19 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 19TH DAY OF DECEMBER 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI- YEBOAH, CIRCUIT COURT JUDGE. C1/105/2023 JANET KORKOR KWEITSU VRS NDK FINANCIAL SERVICES JUDGEMENT The Plaintiff per a Writ of Summons filed on 4/01/2023 and an amended Statement of Claim issued from the registry of this Court against the defendant, dated 04/05/23, claiming the following: a. Recovery of the total sum of accumulated two (2) investments at their maturity dates as agreed being GHC 99,422.62. b. Interest on the said amount at the prevailing commercial bank rate from June 2022 till date of final payment. c. General Damages. d. Costs. The Defendant filed an appearance on 18/01/2023 and a Statement of Defence on 24/07/2023 denying the claims made by the Plaintiff. The plaintiff did not file a reply. Facts of the case Plaintiff herein is a businesswoman and a resident of Fulani near Adenta and the defendant is a company that operates as a financial and investment organization. Plaintiff said she made two separate investments with the Defendant and after the agreed maturity period, the Defendant has failed, refused and/or is unwilling to pay agreed maturity sum. Plaintiff pleaded that she started a first investment with the defendant on the 30th day of December, 2019 with an amount of GHC 13,000.00. It is the case of the Plaintiff that the amount at maturity for the first investment was to be GHC 21,517.68. The plaintiff avers that on the 2rd November, 2020 she entered into concurrent investment with the Defendant with an amount of GHC 46,000.00 and per the agreement she was to recoup an amount of GHC 77,904.94 at maturity on the 1st day of November, 2022. The plaintiff contends that upon visiting the Defendant on the 27th June, 2022 and subsequently on the 18th day of July, 2022, to demand payment of her matured funds, same did not materialize. Plaintiff says several persistent attempts by Plaintiff to get Defendant remedy the issue has proven futile and plaintiff say that she has an impending travel for work contract and needs the funds owed and it has cost her the Plaintiff deep financial burden and loss of valuable sums of money as she will lose this once in a lifetime contract. The plaintiff then prayed the court to compel the defendant to pay the agreed maturity funds including damages. The plaintiff concluded and prayed per the writ of summons. The defendant filed a statement of defence but later same was struck out. Counsel for the defendant from the record indicated that they do not intend to file witness statement for the defendant. During the case management conference when they had not filed their witness statement as ordered by the court, their defence was struck out and the plaintiff was to prove her case. The defendant opted not to be heard but were ready to cross examined the Plaintiff and therefore waiving their right to be heard. I must say that the right to be heard is an established common law principle. It is also an inalienable right which should not be taken away unless the rules of court permit it to be so. See Republic v High Court, Accra Ex-parte Salloum & Others. (2012) 37 MLRG 34 SC. In the case of Ankumah vrs City Investment Co. Ltd (2007- 2008) 2 SCGLR 1064 the Supreme Court held per Adinyira JSC at page 1076 as follows: “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 want to be heard”. See the Rep v Court of Appeal ex Parte Eastern Alloy Co. Ltd 2007-08 SCGLR 371 On the 22-08-23 the case was called for the application for directions to be taken and three issues as per the application for directions were set down as issues for the determination by the court. Parties were then asked to file their witness statement and other processes and the suit was adjourned. On the next adjourned date, the plaintiff filed their processes they intend relying on for the trial and the court was informed that the defendant does not intend to file any process and the case was adjourned for case management conference. On 14/11/2023 counsel for the defendant announced formally that they do not intend to file a witness statement and based on that the defence of the defendant was struck out for the plaintiff to prove her case before the court. During the trial the plaintiff tendered exhibits A – D which were the investment documents of her contractual arrangement with the defendant company. Exhibit E was the email correspondence detailing the demands of the plaintiff on the defendant company for her investments and exhibit F was the investment statement that the defendant issued to the plaintiff indicating the investment statement. This was showing all the running investments of the Plaintiff as at 16/10/2023 and showing the running investment even after this suit was filed in this court. All the exhibits, A-F, were admitted into evidence without objection from the defendant. The plaintiff, testifying before the court, to prove her case, said, she is a businesswoman and investment customer of the Defendant Company. She said she made two separate investments with the Defendant Company, for a period of two years commencing from 30th December 2019 to 26th December 2022 and 2rd November 2020 to 2nd May 2022, respectively and tendered the initial investment documents, which were receipts, she received from the Defendant Company. She also tendered the other documents which depicted the amount she was to receive at maturity with respect to those investments roll overs as she claimed per her writ of summons before the court. Plaintiff said on 27th June 2022 and 18th July 2022 she requested to withdraw her funds from the Defendant’s Company as she had been offered an international work contract and needed the funds to complete her travel preparations and costs but the defendant company refused, neglected and failed to give her back her money with respect to her two investments contrary to the terms agreed with her when they contracted. Plaintiff said she made several persistent physical visits, as well as, letters she wrote to the Defendant’s company, to demand her funds but did not yield positive result. The plaintiff tendered emails she wrote to the Defendant’s Company in pursuit of the demand of her monies from the Company. The Plaintiff concluded that she informed an officer of the defendant company that the failure of the defendant’s company to give her money especially upon their maturity would impede her travels and work plans which will cost her a deep financial burden, loss of valuable sums of money and a loss of once in a life time work contract outside the country. The plaintiff concluded and prayed the court to enter judgment in her favour for all her reliefs indorsed on the writ of summons. The plaintiff was cross examined after her evidence in chief. Counsel for the defendant during the cross examination did not deny the fact that the plaintiff had her investment with the defendant company. Counsel concern during the cross examination was the fact that the plaintiff rolled over her investment with the company voluntarily and that when the plaintiff placed her demand on the 27th June 2022 and 18th July 2022, her redemption had not accrued. The plaintiff in all and generally explained that since the investment could not be curtailed, as she was not paid, she had to roll it over as her money is with the defendant and she was told she will be paid without any specific date given by the defendant company. She explain further that she was still expecting the defendant to pay but to no avail and she met one investment Manager and one staff called Selassie and Emmanuel respectively and she said, she was told that she will be paid in a week but the week passed and there was no communication. From the proceedings before the court, there is no denial that the plaintiff paid money to the defendant company. The plaintiff proved this with exhibit A which was official receipt of the defendant company with an amount of GHC 12,000, exhibit B which was also an official receipt of the defendant company with an amount of GHC 1,000 and exhibit D also a receipt with an amount of GHC 46,000. As stated earlier these exhibits were tendered without any objection and also during the trial, same was also not challenged by way of cross examination by the defence counsel. The case of the plaintiff is that she gave this money to the defendant for investment purposes. To the plaintiff after her investment was due, the defendant has refused to pay the principal and the interest. After several attempt to get her money and the defendant refusing to pay the plaintiff, she decided to take legal action and made a claim of her money she paid and the accrued interest. This situation was challenged by the defendant company, that the investment was still running as was indicated during cross examination, and it was rolled over by the plaintiff voluntarily. It was also the case of the defence during the cross examination per the last question of the cross examination that even when the plaintiff placed her demand on the 27th June, 2022 and 18th July, 2022 her redemption had not accrued. These challenge by the defence made it difficult for the plaintiff to determine how the interest had accrued and when she voluntarily stopped the investment to come to the figure she is claiming as the investment per the record was not one stream and was still being rolled over. Therefore there was the challenge as to whether some of the interest as part of the claim had accrued. I must say the investment fell into these technical challenges as a result of the fact that the plaintiff was not paid all those period she was making the claim for her money and interest. Therefore if it is the case that the plaintiff cannot prove her case with respect to the interest that has accrued per her investment, the money that was collect by the defendant company was proved before the court and the defendant must pay the plaintiff her money and for the defendant keeping the money of the plaintiff all these while, the defendant company should pay interest on the sums of the plaintiff’s money that is with the company. From the records before the court, there is no doubt that the plaintiff had investment arrangement with the defendant company which the plaintiff through various efforts has attempted to get her money but to no avail. It is also clear that the defendant was not paying the plaintiff of her money as and when the maturity period elapses and the investment is rolled over. To the plaintiff, there is no benefit if the investment is rolled over and at the time of maturity she cannot get her money. Again what is the essence of the roll over if when she request to be paid back her money from the investment, same is not paid? From the evidence and the pleadings and processes filed, the plaintiff after all the efforts and she still could not get her money decided to take legal action against the defendant company to retrieve her investment with the defendant company. Even at this point that the plaintiff decided to take the legal action, the investment with the defendant company was still being rolled over when maturity is due. The plaintiff tendered an investment statement showing summary of her investments which were still running as at 16/10/2023 when her action has been in court for some time with various maturity dates not even due with a grand total sum at the end of the maturity date. From the records before the court and the figures indicated by the plaintiff in her written submissions before the court it is not clear in the mind of the court when she unilaterally considered the reliefs per the principal and interest accrued, which she is seeking per the exhibits filed. However from the record and exhibits of receipts, the defendant received the plaintiff’s money, which were GHC 12,000, GHC 1000 and GHC 46,000 which was for investment purposes which the defendant has refused to pay back and associated roll over interest. Therefore the judgment of the court is for the plaintiff to recover those sums which were GHC 12,000, GHC 1000 and GHC 46,000. Interest on those payments made to the defendant from the date of payment of those money. Defendant to pay general damages of GHC 30,000 and cost of GHC 10,000. 8