WOMEN’S WORLD BANKING GHANA vs. VICTORIA ASOWAH & ANOR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2015
WOMEN’S WORLD BANKING GHANA - (Plaintiff)
VICTORIA ASOWAH & ANOR - (Defendant)

DATE:  18TH MARCH, 2015
SUIT NO:  BFS/225/14
JUDGES:  HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS:  AKUA KONADU ADU GYAMFI FOR PLAINTIFF
YAW OWUSU ASAMOAH FOR DEFENDANT
JUDGMENT

This is a Bank Debt Recovery case in which the Plaintiff seeks to recover an amount of GH ¢30,000.00 from the Defendants together with interest from 13/11/2013 till date of final payment. The sole issue for determination is whether or not the Plaintiff is entitled to the reliefs endorsed on the writ of summons.

 

The Plaintiff’s case as captured from its statement of claim filed on 06/05/2014 is as follows: Upon the request of the 1st Defendant, the Plaintiff granted a loan of GH¢30,000.00 to her payable within twelve months; at an interest rate of 45.06% per annum. The monthly installment payment is GH¢3, 940.00

 

The 1st Defendant secured the loan with a guarantee fund, household assets, future sales and stock.

 

She further assigned her interest in stock and household assets to the Plain tiff during the period of the facility. The 2nd Defendant also guaranteed the repayment of the loan by executing a contract of guarantee dated 13/09/2013. The 1st Defendant failed to keep up on the monthly installment payments necessitating the Plaintiff to call in the facility and take the instant action.

 

In the statement of defence filed on behalf of the Defendants on 05/06/2014, the 1st Defendant did not deny the grant of the GH¢ 30,000.00 loan to her at the interest rate and monthly installment payment stated by the Plaintiff. She however denied assigning her stock and household assets to the Plaintiff. Her defence was that she imported some goods from India which had not arrived. Consequently, she could only make a payment of GH¢7,000.00 plus the guarantee fund of GH¢7,500, bringing her total payments to GH¢ 14,500.00. She further alleged that her failure to keep up on the payments is not deliberate.

 

I notice from the record that there is an affidavit of service of the writ of summons and statement of claim in respect of the 1st Defendant only. Per the said affidavit, she was served with the above processes on 19/05/2014. On 23/05/2014, a lawyer by name Yaw Owusu Asamoah purported to enter an appearance on behalf of the two defendants and proceeded to file a defence. Prior to the commencement of this trial, all efforts to serve the 2nd Defendnat with hearing notices proved futile as the said defendant could not be traced. Three hearing notices were also served on Yaw Owusu Asamoah Esq. on 08/01/2015, 21/01/2015 and 11/02/2015. Counsel was duly served through his law clerk, Bright, at Aseda House, Kumasi. Both Defendants and the Lawyer failed to appear in court on each of the three dates set for hearing.

 

In the absence of an affidavit of service of the writ of summons and statement of Defence on the 2nd Defendant, it is my considered opinion that she could not have validly instructed a lawyer to file a defence on her behalf. Coupled with the fact that she could not be traced for service of hearing notices, it is highly probable that she has no notice of this suit and that the 1st Defendant engaged a lawyer upon service of the writ of summons and statement of claim on her. The law is that a court has generally no jurisdiction to proceed a party who has not been served. See Barclays Bank of Ghana Ltd v Ghana Cables Co Ltd (1998- 1999) SCGLR 1 per Acquah JSC (as he then was). In the circumstance, the appearance entered on behalf of the 2nd Defendant has no legal basis and the same is struck out.

 

What then is the fate of the 1st Defendant who is said to be the principal debtor? Counsel for the 1st Defendant was served with a hearing notice on 08/01/2015 for the 14/01/2015 hearing. He and his client were not in court. The case was then adjourned to 28/01/2015 and counsel was again served on 21/01/2015 but he neglected to appear in court. For the third time, counsel was served on 11/02/2015 for the 18/02/2015 hearing but neither counsel not client showed up for the trial. Having given the 1st Defendant and his lawyer reasonable notices of the trial, the court was compelled to proceed under Order 36 of CI 47.

 

Order 36 rule (1) (2) (a) of the High Court (Civil Procedure) Rules, 2004 C.I. 47. It provides as follows:

 

Rule (1) (2)      where an action is called for trial and a party fails to attend, the trial judge may:

 

Where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.

 

Even though the 1st Defendant and her lawyer elected not to participate in this trial, I am enjoined by law to analyze the evidence adduced on behalf of the Plaintiff by using the same standard of proof in civil suits i.e. proof on a preponderance of probabilities. In Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 (holding 1), the court held that “a tribunal of fact can decide an issue on the evidence of only one party”.

 

In the same case, their Lordships stated (holding 5):

 

“…In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or 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…”

 

In support of the Plaintiff’s case, an officer of the Bank tendered, among other things, the loan agreement executed by the 1st Defendant (exhibit C); a deed of assignment (exhibit E); a statutory declaration made by the 1st Defendant (exhibit F) and the 1st Defendant’s statement of account (exhibit G).

 

From exhibit G, the Plaintiff’s representative sought to explain to the court how the 1st Defendant’s current indebtedness of GH¢36, 280.00 was arrived at. He identified the dates of deposits and the amount so deposited as follows: 14/11/2013 GH¢3000.00; 13/01/2014 GH¢1000.00; 11/04/2014 GH¢2000.00 and 15/01/2015 GH¢710.00. In addition to these payments, the Bank’s representative said in evidence that the 1st Defendant instructed them to use her guarantee fund of GH¢8,700.00 to reduce her indebtedness which they did. Thus, her total deposits of GH¢6, 216.87 plus the guarantee fund of GH¢8,700.00 brings the total payment to GH¢14, 916.87.He further explained that if the 1st Defendant had not defaulted, she would have paid GH¢44, 820.00 as the total principal and interest. And, when the total payment of GH¢14, 916.87 is deducted, the difference is GH¢29, 903.13. Continuing, the Bank’s representative said penalty interest of GH¢6, 377.13 was added to the GH¢ 29, 903.13 to arrive at GH¢36, 280.26.

 

I will comment on exhibit C. This loan agreement was read and explained to the 1st Defendant in the Twi Language by one Rosemary Biney before she appended her signature. By executing exhibit C, the

 

1st Defendant accepted the 45.6 % per annum interest , processing fee of 0.5%, commitment fee of 2.6%, 6% penalty charge on any late installment payment and GH¢7.00 for Bank of Ghana collateral registration. She further agreed to pay GH¢3,940.00 monthly/fortnightly for a period of twelve months. On the face of exhibit G, the 1st Defendant made irregular payments right from the onset contrary to the terms of exhibit C. the Bank is therefore entitled to charge the 6% penalty interest on any balance outstanding.

 

Contrary to the testimony of the Bank’s representative that the total cash payments made by the 1st Defendant was GH¢6,216.00, I find from exhibit G that the total cash deposits prior to the issuance of the writ of summons was GH¢7000.00. The cash payment of GH¢ 1000.00 made on 15/11/2014 and which is captured in exhibit G was missing from the Plaintiff’s representative’s testimony. After the writ had been issued, she paid GH¢710.00 on 15/01/2015. Obviously, this will affect the calculation of default interest charges on the amount outstanding. The calculations are also based on 13 months instead of the agreed 12 months and are misleading.

 

To set the record straight, Gh¢1000.00 will be added to the total payments to arrive at GH¢15, 916.87 instead of the GH¢14, 916.87 indicated by the Plaintiff’s representative. From the calculations on exhibit G, the monthly interest charges would have been GHs 1, 140.00 if there was no default. Thus, the interest for twelve months if there was no default ought to have been GH¢13, 680.00 and not GH¢14,820.00 which is written on exhibit G. When this GH¢ 13,680.00 is added to the principal amount of GH¢30,000.00 less total payments of GHS 15, 916.87, the balance outstanding is GH¢27, 763.13.

 

Under the circumstance, I find that the 1st Defendant’s indebtedness less the penalty charges is GH¢27, 763.13. The Plaintiff is to re-compute the 6% penalty charges and add it to the debit balance.

 

I have also compared the 1st Defendant’s signature on exhibits A, B, C and F to that on exhibit E (i.e. the loan application form, the Approval of loan request, the Loan Contract agreement, a statutory declaration made by the 1st Defendant and the deed of assignment). It is obvious from the face of these documents that the 1st Defendant duly executed the deed of assignment as in exhibit E and she is bound by her own deed.

 

Having weighed the evidence adduced on behalf of the Plaintiff on the balance of probabilities, I find that the 1st Defendant is indebted to the Plaintiff in the sum of GH¢27,763.13 excluding the penalty charges of 6% per annum on late installments. Accordingly, judgment is entered in favour of the Plaintiff against the 1st Defendant in the sum of GH¢27, 763.13 together with the agreed interest of 45.6% per annum from 14/10/2014 till date of final payment and penalty interest of 6% per annum to be calculated in the manner agreed by the parties in the loan agreement (exhibit C).

 

Having considered the provisions of order 74 of C.I 47, I award cost of GH¢2,000.00 against the 1st Defendant in favour of the Plaintiff.