a)    An order for the honourable court directed at the Defendants for the recovery by the Plaintiff of the sum of GH¢2,482,157.79

b)    Penalty of GH¢2,482,157.79

c)    Interest of 4% per month on the outstanding balance with effect from 1st October, 2014 till date of payment.

Or in the alternative

1. An order for the judicial sale of the residential property situate at Dzorwulu, Accra and described as No C27/14 Kpentenbiibi Street and registered at the Lands Registry with No LD 8455/AC 11933.

The factual basis for the claim of the Plaintiff can be summarized as follows: That by a loan agreement on the 23rd of December, 2013 executed between the parties, Plaintiff granted a loan in the sum of Ghc¢1,800.000.00 to the 1st Defendant for the purpose of obtaining supplies of commodities like rice, sugar, cooking oil and canned fish from Olam, a company that deals in food processing. Plaintiff claim that the loan was to be repaid within six months at an interest rate of 4% per month and secured with the personal guarantee of the 2nd Defendant, the Chief Executive Officer of 1st Defendant company. To Plaintiff 2nd Defendant again executed a deed of guarantee over his house C27/14 at Dzorwulu. Plaintiff avers that 1st Defendant has failed to repay the loan and the interest charged and has treated with disdain overtures made by Plaintiff for the loan repayment and that Defendant would not repay the loan unless compelled by the court to do so.

Defendants did not only deny the essential claims made by Plaintiff but also have counter claim for the following reliefs:

a.    A declaration that the non-payment of the loan obtained by the Defendant from the Plaintiff has not been paid because of the effect of Plaintiff letter of 14/2/2014 written to the Account General’s Department.

b.    An order on the Plaintiff to account for monies received from Account General’s Department as deductions from salaries of GBC workers for commodities purchased from Defendant.

c.    Cost.

d.    Any other relief the court deems fit.

Defendants in their joint statement of defence admit of the loan having been disbursed to the 1st Defendant but claim that it was to supply commodities to the workers of Ghana Broadcasting Corporation (GBC) and that the loan was to be repaid on receipt of monies deducted from the salaries of GBC workers who bought the commodities supplied. To Defendants without notice to them, Plaintiff wrote to the Controller and Accountant General’s Department for an amendment of the arrangement it had made for deductions to be made of the salaries of the GBC workers who bought the commodities and paid to 1st Defendant. That the Controller acceded to this request and paid the deductions directly to the Plaintiff and since then the Defendant would be unable to know how much deductions had been made and paid to the Plaintiff by Controller into Plaintiff’s account with Ecobank where the deductions of GBC workers were lodged.

To Defendants several demands made for a meeting to reconcile how much deductions Plaintiff has received has been spurned and Plaintiff has been very uncooperative compelling Defendants to send letters to Plaintiff via registered mail and email. It is their defence that they cannot know how much Plaintiff has received so far from deductions to enable them know how much of the loan was still outstanding.

As the matter did not originally commence at the Commercial Court the following were the issues set down in the application for directions:

      I.        Whether or not the loan transaction between the Defendant and the Plaintiff was to enable the Defendant procure items for supply to only the customers at GBC or to other customers

    II.        Whether or not Plaintiff’s letter to the Accountant-General dated 14th February, 2014 jeopardized the fundamental arrangement for repayment of the loan facility by the 1st Defendant to the Plaintiff

   III.        Whether or not Plaintiff has been paid any monies by the Accountant General’s Department on behalf of the Defendant with respect to the loan transaction.

  IV.        Whether or not NIB credited any monies received from the Accountant General’s Department to the Plaintiff

    V.        Whether or not Plaintiff authorized the Accountant General Department to pay deductions collected from GBC workers in relation to the transaction in favour of the Plaintiff.

EVIDENCE

During trial Plaintiff testified through its authorized representative, Jonathan Sam, the head of Credit Department of Plaintiff’s company. He tendered a number of documents in his testimony before the court, which includes, a board resolution of 1st Plaintiff’s company as Ex ‘A’, a loan facility agreement as Ex ‘C’, a joint and several guarantee executed as a precondition for the disbursement of the loan as Ex ‘D’, a board resolution to the Ghana Broadcasting Corporation instructing the latter that payments made for supplies made to GBC should be written in the joint names of 1st Defendant and the Plaintiff, a letter from GBC confirming that it will make payment in the joint names of Plaintiff and 1st Defendant, a purchasing agreement between 1st Defendant and GBC as Ex ‘Q’.

On the other had a witness statement in the name of Ernest Agbemor Yeboah had been vetted at the case management conference together with documents that were then marked as Ex 1-12. However, defendants at the close of the case for the Plaintiff decided not to open their defence and invited the court to determine the claim of Plaintiff and their counter claim based on the evidence before the court. In that respect, what is evidence before the court is the testimony of plaintiff’s representative, Jonathan Sam and the exhibit tendered whiles there is no testimony by the Defendants neither are there any exhibits admitted on behalf of the Defendants. This is because evidence is preferred from the witness box and whatever documents examined at the case management stage unless formally tendered in the box and the necessary cross examination done on it cannot be said to be evidence.

On this basis beginning with the counter claim of the Defendants which is nothing but a claim by defendant who is technically the Plaintiff as a counter claim is a separate and independent action and the defendant counter claimant bears the burden of proof regarding every allegation of fact traversed. The rule as stated in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 regarding counter claim is that:

‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’

In that respect Defendants that bore the burden of persuasion and the evidenciary burden in respect of their counter claim in the face of their failure to testify and tender the necessary documents in proof of their counter claim would be deemed to not have proved same as merely stating their claims in their pleadings without evidence at trial to back them cannot be said to proof in law. I accordingly dismiss the entire counter claim of the Defendants as unproved in law at all.

PLAINTIFF’S CLAIM

Plaintiff testifying through Jonathan Sam claim that Plaintiff advanced a loan of GH¢1,800,000.00 to the 1st Defendant after the execution of a loan agreement, Ex ‘C’ on the 23rd of December, 2013. And whose purpose was to enable 1st defendant purchase commodities in the nature of rice, oil, fish for supply to the customers of 1st Defendant. A look at Ex ‘C’ will reveal that it was duly executed by the parties by their authorized representatives. Throughout the cross examination of this witness, counsel for Defendants never disputed the existence of this loan facility. Indeed there was admission that 1st defendant took the loan to purchase provisions for supply to its customers.

Neither was the impression created that 1st Defendant has repaid the loan to Plaintiff. In fact, the defence of the Defendants have been that Controller and Accountant General’s Department that was supposed to have made the deductions from the monthly salaries of the workers of GBC who bought the items, refused to make the deductions and credit Plaintiff with the monies and accordingly Plaintiff cannot blame Defendants. The following from the cross examination of Jonathan Sam is worth quoting to illustrate the position of Defendants that the CAGD having failed to deduct monies due Plaintiff from defendant’s customers, then to Defendants they were not owing:

Q: I am suggesting to you that the delay in the repayment of the loan is not because the money was paid to the Defendants and they have refused to pay Beige Capital, but rather because of the fact that the Accountant – General has not deducted monies from the GBC workers

A: My Lord I disagree

Q: I am putting it to you that the repayment of the loan has delayed the Accountant –General has failed to make the necessary deductions from the salaries of the GBC workers who purchased the commodities with the loan from Beige Capital

A: My Lord it is not so

Q: Mr. Sam I am suggesting to you that under the circumstances that the Accountant General has failed or refused to make the necessary deductions from the salaries of the workers who purchased the commodities, Defendants cannot be made to pay penalty for the non-payment

A: My Lord, I disagree because penal charges are captured in the loan agreement”.

A careful examination of Ex ‘C’ does not show that Defendant was at liberty in the event of default or non-payment of the loan to canvass the kind of claim he was putting to the Plaintiff’s representative. Nowhere was it stated that the failure of deductions of the salaries by a third party could constitute a discharge of the obligations of Defendants. On the hand the controller and Accountant General Department (CAGD) was not a party to the agreement between the parties. Exhibit ‘H’ clearly shows how GBC came into the picture based on a letter of request from 1st defendant that payments for supplies of item be written in the joint names of 1st Defendant and Plaintiff. And in Ex ‘J’ GBC confirming that they will comply with the request. Exhibit ‘K’ being a letter from CAGD provides a code to 1st defendant into which deductions of salaries of its customers from GBC was to be made from. See also the agreement between 1st defendant and GBC as Ex ‘Q’.

This was nothing but a convenient arrangement made by 1st Defendant and a third party to repay the loans to Plaintiff and the fact of the failure of the third party or otherwise to make deductions does not relieve 1st Defendant of its liability for the repayment of the loans, I so hold and find. Having failed to contradict the claim of Plaintiff, I further find and hold that Plaintiff is entitled to the recovery of the amount of Gh¢2,482.157.79 as the balance outstanding on the loan facility granted by Plaintiff to 1st Defendant. Penalty as agreed by the parties in Ex ‘C’ is also granted by the court to be charged. Interest as agreed between the parties from 30th September, 2014 till date of final payment is also granted. The alternative relief for an order of judicial sale of the residential property situate at Dzorwulu, Accra being H/No C27/14 Kpentsenbiibi Street used as one of the securities is also granted.

I take into consideration the factors spelt out under Order 74 of the High Court (Civil Procedure) Rules, C. I. 47 I awarding cost, I take note of the default charges that has been added to balloon the amount and award cost of Gh¢7,000.00 in favour of Plaintiff.