Okyere v NDK Financial Services Limited (CM/RPC/0455/2022) [2025] GHAHC 108 (30 May 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD IN ACCRA ON FRIDAY, THE 30TH DAY OF MAY, 2025 BEFORE HER LADYSHIP JUSTICE YAA ONYAMEYE GYAKOBO ‘JA’ SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO. CM/RPC/0455/2022 MRS. WINIFRED OKYERE - PLAINTIFF VS NDK FINANCIAL SERVICES LIMITED - DEFENDANT ---------------------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------------------- I. INTRODUCTION 1. By a Writ of Summons filed on 18th May 2022 the Plaintiff claimed the following reliefs: a. An order for the Defendant to pay the sum of GHS2,754.38 with an interest rate of 16% per annum from 30th May 2021, till date of final payment; b. An order against the Defendant to pay the sum of GHS142,347.83 with an interest rate of 20% per annum from 26th April 2021 till date of final payment; c. Damages for breach of Contract; 1 | P age d. Costs, inclusive of solicitor’s fees; and e. Any other reliefs that this Honourable Court may deem just. II. STATEMENT OF CLAIM 2. The Plaintiff pleaded that her full name is Winifred Adwoa Okyere and that she is a retired nurse. She also pleaded that she commenced investing with the Defendant, a limited liability company engaged in financial services and offering investment banking advice, on or before the year 2009, and that the first account was opened under the name of Winifred Adwoa Okyere with customer number 101979. 3. The Plaintiff further pleaded that she made a deposit with the Defendant on 29th November 2020, under the name Winifred Adwoa Okyere with the sum of GHS2,754.56 and that the deposit was to accrue interest at a rate of 16% per annum with a maturity date of 20th May 2021. However, when the maturity date was due, the Defendant failed or refused to allow her to redeem her investment and its accrued interest but rather it rolled over without her authorisation. 4. The Plaintiff averred that the second account with Defendant was opened under the name Winifred Okyere with customer number 101978 and that the starting amount for investment in the account as at 26th March 2021, was GHS142,347.83 and that she requested the Defendant to redeem her matured investment of GHS142,347.83 but her request was refused by the Defendant 2 | P age who rolled over the sum without her approval with the applicable interest rate of 20 per cent per annum with a maturity date of 26th March 2022. 5. The Plaintiff further averred that even though she initially had one account with the Defendant, she had to separate the accounts by using two different names because she wanted to distinguish the investments, she made for herself from that of her sister. 6. She also averred that she made several attempts to redeem her money after her investments had matured but all her attempts had proved futile as the Defendant refused and or neglected to pay her the invested amount plus the accrued interest but rather proceeded to roll over her principal amounts without authorisation from her, and when it came to her attention that the amount was being rolled over, she inquired and was informed that the money was rolled over because they could not make any payment to her. 7. The Plaintiff further averred that her solicitors subsequently issued a demand notice on 27th September 2021, and the Defendant by its response dated 1st October 2021, requested for three months from the date of the letter to enable it meet her demands, and that the three months period had elapsed without her receiving any payment from the Defendant and she had subsequently received a text message from the Defendant informing her that they had rolled over her investments. 3 | P age 8. The Plaintiff finally pleaded that the money owed is long overdue and that unless compelled by the court the Defendant would not pay and claimed the reliefs stated in paragraph 1 above. III. STATEMENT OF DEFENCE 9. The Defendant filed a defence on 12th August 2022, and pleaded that it was never the case that it had failed to refund the Plaintiff’s investments and that it had timeously obliged all of the Plaintiff’s requests for payments. 10. The Defendant further pleaded that it was not indebted to the Plaintiff as claimed and that the outstanding sum payable to the Plaintiff was less than the sum stated by the Plaintiff and prayed the court for parties to reconcile accounts to ascertain the accurate sum due and payable to the Plaintiff. 11. The Defendant finally pleaded that the Plaintiff was not entitled to any of the reliefs sought. IV. PLAINTIFF’S REPLY 12. The Plaintiff pleaded by its Reply which, was filed on 1st June 2023, that the Defendant’s decision to roll over her investment without her consent and approval amounted to a failure to permit her to redeem her investment and accrued interest, and that it consistently failed to pay the money due her upon request even after maturity of the unapproved initial rollover. 13. The Plaintiff also averred that the response to the demand notice of her lawyers constitutes an admission of the debt, and that the Defendant had acknowledged 4 | P age its indebtedness to her via the statements that it had given her and its response to the demand letter from her lawyers her. She further averred that it was not accurate for the Defendant to state that the sum payable to the Plaintiff was less than the sum stated by the Plaintiff. V. ISSUES CERTIFIED FOR TRIAL 14. Pre-trial settlement having broken down the following issues were certified for trial on 16th October 2023: i. Whether or not the Defendant rolled over the Plaintiff’s investment upon maturity without authorisation; ii. Whether or not the Defendant owes the Plaintiff the outstanding amount of GHS2,754.38 with interest of 16% per annum from 30th May 2021, till date of final payment; and iii. Whether or not the Defendant owes the Plaintiff the amount of GHS142,347.83 with interest of 20% per annum from 26th April 2021 till date of final payment. VI. PLAINTIFF’S EVIDENCE 5 | P age 15. Plaintiff filed a witness statement on 1st March 2024 which, together with attached documents were adopted as her evidence-in-chief on 31st May 2024. The Plaintiff testified among others that she had two investments with the Defendant which stated that the principal amount and interest earned was subject to an automatic roll-over for the same period at the prevailing interest rate unless she instructed otherwise and that her initial investment was under the name Winifred Okyere with customer number 101979 on 28th September 2009. 16. She tendered in evidence Exhibit “A” a copy of the Terms and Conditions of the investment account with the Defendant, and testified that the initial investment with the Defendant was under the name Winifred Okyere with customer number 101979 on 28th September 2009, and that she was assigned a relationship manager, Bertha Tagoe when she opened the investment account and was instructed to contact her for all matters regarding her investment account. She tendered in evidence Exhibit “B” a copy of an electronic mail from the Defendant directing her to contact Bertha Tagoe. 17. The Plaintiff further testified that she would contact Miss Tagoe to redeem portions of her investment before it was rolled over and her instructions to redeem were adhered to with payments made into her CAL Bank account, however from November 2020 her instructions to redeem were not adhered to. She also testified that as of 30th November 2019, the principal amount in her investment account 101979 with Contract Number LD2001021301 was GHS6,218.49 and this was to accrue interest in 365 days at a rate of 22% with a maturity date of 29th November 2020 and tendered in evidence Exhibit “C” a copy of her customer investment statement. 6 | P age 18. It was the Plaintiff’s testimony that on 24th November 2020, she sent a message to Miss Tagoe to have the full amount of the investment of GHS6,218.49 paid into her account before it matured but the Defendant failed or refused to pay the full amount into her account and on 29th November 2020, an amount of GHS2,586.56 was rolled over at a rate of 16% for 182 days with a maturity date of 30th May 2021, despite her express instructions to have all money paid into her account before it matured. She tendered in evidence Exhibit “D” messages between Miss Tagoe and herself and “E” a copy of her customer investment statement for the deposit respectively. 19. It was also the Plaintiff’s testimony that on 23rd December 2020, and 8th January 2021, respectively she followed up on her earlier request for her money but the Defendant persistently failed and or refused to honour her request even though her messages were acknowledged by Miss Tagoe. 20. The Plaintiff’s evidence was that she held another investment account with the number 101978 and the name Winifred Okyere and that she had two accounts in order to distinguish them from each other, and that as at 22nd March 2021, the amount in that account was GHS114,796.64 accruing interest at the rate of 24% for a term of 365 days, which was to mature on 26th March 2021. She tendered a Customer Investment Statement in evidence as Exhibit “F”. 21. In addition, the Plaintiff’s evidence was that on 22nd March 2021, she requested the Defendant that her investment of GHS114,796.64 with customer number 101978 be redeemed but the Defendant failed or refused to honour her request, and without her permission or authorisation rolled over the amount for a further 365 days at a lower rate of 20% instead of 24% per annum with a maturity date of 26th March 2022. She tendered in evidence Exhibits “H” and “H1” which 7 | P age were messages from her to Miss Tagoe requesting for the investment to be paid into her account, and “G” a Customer Investment Statement showing that the investment had been rolled over respectively. 22. The Plaintiff testified that she made attempts to redeem her investments but all her attempts were futile and the Defendant persisted in rolling over her investments upon maturity without her authorisation at rates that she had not agreed to. She tendered in evidence Exhibit “K” series, copies of various instructions she gave to the Defendant to redeem her investments. 23. She also testified that her lawyers issued a demand notice to the Defendant on 27th September 2021, and the Defendant responded by a letter dated 1st October 2021, requesting for three months to enable them meet the demands for payment but after the expiration of the three-month period the Defendant failed to make the payment. Exhibit “J” which is the Defendant’s response was tendered in evidence. 24. She further testified that on 23rd August 2023, the Defendant paid the sum of GHS3,436.46 to her. She tendered in evidence Exhibit “K” which is a copy of the notice of payment from her bankers, Cal Bank PLC and that the Defendant had not made any further payment to her. She therefore prayed for the reliefs endorsed on her writ. VII. EVIDENCE OF THE DEFENDANT 8 | P age 25. The Defendant’s witness, Bertha Tagoe, filed a witness statement on 15th February 2024. However, from the record, the witness failed to attend court during the trial and did not mount the witness box to testify. VIII. ANALYSIS OF EVIDENCE, LAW AND RESOLUTION OF ISSUES 26. Before embarking on the resolution of the issues set out above, there are some preliminary matters, which I should address. The proceedings which were part heard were adopted on 16th January 2025. From the record, on 25th March 2024 the case was adjourned to 20th, 23rd, 28th, 29th, 30th and 31st May 2024 at 11am each day for hearing. The Defendant’s counsel was in court when the dates were agreed and the order for hearing made but was absent and so was the Defendant when the case was called at 11.50 am on 31st May 2024, so the court proceeded in their absence. Prior to this the Defendant and its counsel were absent when the court sat on 28th and 30th May 2024. 27. The suit was therefore adjourned to 27th June 2024, for cross-examination of the Plaintiff by Defendant’s counsel and a hearing notice ordered to be served on the Defendant or its counsel. The Defendant and his counsel were again absent on the 27th of June 2024 and the suit was adjourned to 16th July 2024, and a hearing notice was ordered to be served on the Defendant. From the affidavit of service, the Defendant’s counsel was served with the hearing notice on 8th July 2024, but was absent and so was the Defendant. 28. Since the Defendant and its counsel were not present to cross- examine the witness, the court took the view that the Defendant and its counsel had waived their right to cross-examine the Plaintiff, and her case was thus closed. It was 9 | P age further adjourned to 21st October 2024, for the Defendant to open its defence. The record shows that the Defendant’s counsel was served with a hearing notice on 20th November 2024, in respect of the hearing on 26th November 2024 but was absent. On 26th November 2024, the court differently constituted, ordered parties to apply for the proceedings to enable the court adopt same, adjourned to 16th January 2025 and ordered a hearing notice to be served on the Defendant or its Counsel. 29. From the record this was served on 8th January 2025, thus on 16th January 2025, when the Defendant and its counsel failed to show up, the court adopted the proceedings and the Defendant was given the final opportunity to open its defence. Court notes and a hearing notice were ordered to be served on the Defendant or its counsel and the suit adjourned to 27th February 2025. On the said date of 27th February 2025, the Defendant and its counsel failed to show up in court even though an affidavit of service showed that the court notes and hearing notice were served on counsel for the Defendant on 30th January 2025. The court therefore deemed the case of the Defendant closed and adjourned for written addresses to be filed and for delivery of judgment. 30. As pointed out in the paragraphs above, the Defendant’s witness failed to mount the witness box to testify. Under Order 38 rule 3E of the High Court (Civil Procedure) Rules, 2004 (CI 47) as amended a party that serves a witness statement and wishes to rely on same at the trial, must call the witness to give oral evidence unless the court orders otherwise or that party puts the statement in as hearsay evidence. The relevant provision is Order 38 rule 3 E(1) which provides as follows: 10 | P age “3E (1) If a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement, that party shall call the witness to give oral evidence unless the Court orders otherwise or that party puts the statement in as hearsay evidence.” 31. I have already pointed out in the preceding paragraphs that the Defendant’s witness did not testify. From the records, the court did not make any orders regarding the Defendant’s witness statement. Further the Defendant did not put the statement in as hearsay evidence and the Plaintiff did not also put the witness statement in as hearsay evidence in accordance with Order 38 rule 3E(5) of CI 47 which states . “3E (5) If a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence.” 32. I have previously stated that the Plaintiff did not put in the witness statement of the Defendant in accordance with the above rule. The Defendant did not call its witness to give oral evidence in accordance with Order 38 (3E) (1) of CI 47, and did not put the witness statement in as hearsay evidence in accordance with Order 38 (3E) (5). I therefore hold that the Defendant did not wish to rely on the evidence of the witness who made the statement and further that the witness statement of Bertha Tagoe thus does not constitute evidence. 11 | P age 33. Even though the Defendant absented itself from the trial, and the Plaintiff’s evidence was not challenged by way of cross examination, it does not signify that the Plaintiff is entitled to all the reliefs she is seeking. It is the duty of the court to ensure that the reliefs she is seeking are justifiable. Hence, in the Supreme Court decision of TEI & ANOTHER v MESSRS CEIBA INTERCONTINENTAL [2018-2019] 1 GLR 714 the court per Pwamang JSC said as follows at page 724 of the report: “It must be remembered that the fact that a defendant does not appear to contest a case does not mean that the plaintiff would be granted all that he asks for by the court.” Consequently, the Plaintiff will only be granted the reliefs that are justifiable. 34. The burden of proof required in civil matters which must be attained by the Plaintiff may be found in Sections 10, 11(4) and 12 of the Evidence Act, 1975 (NRCD 323). Sections 11(4) and 12 provide as follows: “11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 12(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. 12 | P age Thus, the Supreme Court said in TEI & ANOTHER v MESSRS CEIBA INTERCONTINENTAL supra at page 724 as follows: “The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial.” In TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 the Supreme Court stated the requirements of evidence in a civil suit at page 900 of the report. 35. I have carefully reviewed the pleadings, processes and evidence on record, and will thus proceed to the resolution of the issues certified for trial. Issue “1” is as follows: WHETHER OR NOT THE DEFENDANT ROLLED OVER THE PLAINTIFF’S INVESTMENT UPON MATURITY WITHOUT AUTHORISATION I find from the evidence particularly Exhibit “A” that the Plaintiff initially invested the sum of GHS14,000.00 with the Defendant on 28th September 2009, and that she authorised the Defendant to roll over the investment when due at the prevailing interest rate and for the same duration unless otherwise indicated via a telephone call or in writing. The court also finds from the evidence on record that the Plaintiff had two accounts with the Defendant numbered 101978 and find from Exhibit “C” that a rate of 22% was applicable as at 30th November 2019, in respect of the Plaintiff’s account with customer number 101979 and contract number LD 2001021301. I further find from Exhibit “C” that she had invested the sum of GHS6,218.49 for a period of 365 days with 13 | P age a maturity date 29th November 2020 and that the account officer was Bertha Tagoe. 36. I find from Exhibit “D” that the Plaintiff requested by electronic mail on 24th November 2020, that the investment maturing on 29th November 2020, should not be rolled over. I also find from Exhibit “E” that the foregoing instruction notwithstanding the Defendant paid a sum of money to the Plaintiff and rolled over the sum of GHS2,586.56 at a rate of 16% for 182 days with a maturity date of 30th May 2021. I further find from Exhibits “F” and “G” that the sum of GHS114,796.64 was rolled over on 26th March 2020, and the sum of GHS142,347.83 on 26th March 2021 in spite of the express instructions of the Plaintiff. 37. I find this conduct of the Defendant as contrary to the terms of the agreement it entered into with the Plaintiff on 28th September 2009. I therefore hold that the Defendant rolled over the Plaintiff’s investments upon maturity without her authorisation. From the evidence outlined above, the Defendant defaulted in its obligations and rolled over the Plaintiff’s investments contrary to the terms of their agreement. Since the Defendant defaulted in the performance of its obligations, the Plaintiff is entitled to her outstanding payments and damages for breach of contract. In GHANA PORTS AND HARBOURS AUTHORITY v ISSOUFOU [1993-94] 1 GLR 24 the Supreme Court at page 24 stated as follows: “While admitting that a breach of contract, whatever form it takes, entitles the innocent party to maintain an action for damages, it is my view that the law, as buttressed by a long line of authorities, is that the right of a party to treat a contract as discharged emanates from two types of cases. First, where 14 | P age the contract has been repudiated by the party in default before performance is due or before it has been fully performed. Secondly, where the party in default has committed a fundamental breach, i.e. the promise that has been violated is of a major as distinct from a minor importance:” 38. The Supreme Court expressed similar sentiments in PRAAH AND OTHERS v ANANE [1964] GLR 458 where it stated at page 463 as follows: “I am of the opinion that the appellants have committed a breach which goes to the root of the contract, therefore the respondent is entitled to claim for the full value of the contract”. It is my view, in the light of the foregoing, that the Defendant’s breach is fundamental and further in the words of the Supreme Court, it goes to the root of the agreement as such the Plaintiff is entitled to damages. 39. Issues “2” and “3” which are stated below are: WHETHER OR NOT THE DEFENDANT OWES THE PLAINTIFF THE OUTSTANDING AMOUNT OF GHS2,754.38 WITH INTEREST OF 16% PER ANNUM FROM 30th MAY 2021, TILL DATE OF FINAL PAYMENT AND WHETHER OR NOT THE DEFENDANT OWES THE PLAINTIFF THE AMOUNT OF GHS142,347.83 WITH INTEREST OF 20% PER ANNUM FROM 26th APRIL 2021 TILL DATE OF FINAL PAYMENT 15 | P age It is my view that the two issues set out above will best be discussed together. However, in Plaintiff’s counsel’s Written Address filed on 3rd April 2025, she submits that the Defendant has since the institution of the action paid the sum of GHS3,436.46 to the Plaintiff and even though the Defendant did not advice on the payment, it is her opinion that it represents the investment amount and interest arising out of issue “2” and prayed the court not to make a determination of the matter. In view of Counsel’s prayer, I will hold that issue “2” has lapsed and will this not make a finding on issue “2”. 40. With respect to issue “3”, from the Statement of Defence filed by the Defendant on 12th August 2022, it denied that it had failed to refund the Plaintiff’s investment and that it had timeously obliged all of her requests for payment. It also pleaded that it was not indebted to the Plaintiff and yet pleaded that the outstanding amount payable to her is less than what she had stated. I find from the Statement of Defence that the Defendant admitted that it owed the Plaintiff. 41. In addition to my finding in paragraph 40 above, there is ample evidence on record of the Defendant’s indebtedness in the sum of GHS142,347.83 together with interest at the rate of 20% per annum from 26th April 2021 to the Plaintiff and the discussions outlined in paragraphs 35, 36, and 37 above substantiate this. Further Exhibits “F”, “G”, “H”, “H1”and “J” attest to the fact that the Defendant is indebted to the Plaintiff in the aforementioned sum together with interest from 26th April 2021. I therefore do not intend to reiterate the discussion and will consequently hold that the Defendant owes the Plaintiff the sum of GHS142,347.83 together with interest at the rate of 20% per annum from 26th April 2021. IX. CONCLUSION 16 | P age 42. In the light of the foregoing and on the basis of all the evidence on record, I accordingly hold that the Plaintiff is entitled to the following reliefs and enter judgment in favour of the Plaintiff against the Defendant for the following: a. Relief “b”: An order against the Defendant for the payment of the of GHS142,347.83 together with interest at the rate of 20% per annum from 26th April 2021 till date of final payment; b. Relief “c”: Damages for breach of contract in the sum ofGHS30,000.00; and c. Costs in the sum of GHS20,000.00. (SGD) YAA ONYAMEYE GYAKOBO (J.A) JUSTICE OF THE COURT OF APPEAL (SITTING AS AN ADDITIONAL HIGH COURT JUDGE) COUNSEL YAA OFFEIBEA ASANTE FOR ESINE OKUDZETO FOR THE PLAINTIFF AUTHORITIES 1. TEI & ANOTHER v MESSRS CEIBA INTERCONTINENTAL [2018-2019] 1 GLR 714 2. TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 17 | P age 3. GHANA PORTS AND HARBOURS AUTHORITY v ISSOUFOU [1993-94] 1 GLR 24 4. PRAAH AND OTHERS v ANANE [1964] GLR 458 18 | P age