JUDGMENT

By a writ of summons the plaintiff claims against the defendant

a. Immediate refund of the sum of GH₵27,766.74 being excess loan repayment made.

b. An order of the court directed at the defendant to stop forthwith the debiting of the plaintiff’s loan account.

c. An order for the furnishing of a comprehensive statement of account starting from the day the facility was granted.

d. An appointment of an independent auditor to go into the accounts of the loan.

e. Any other order(s) as to this Honourable Court may seem meet.

The defendant entered appearance after service of the writ and the statement of claim and then filed a defence in which the defendant also counterclaims against the plaintiff for:

a. The sum of GH33, 330.45 due and owing the defendant by the plaintiff under the facility.

b. Interest on the aforementioned sum from 10^th September, 2013 to date of final judgment.

c. Further or in the alternative an order for the judicial sale of the property: 5 (five) bedroom single storey detached house situate at Bejuahum New Achimota, Accra.

d. Cost including counsel’s fees.

After the failure of pre-trial settlement the matter was referred for trial. The parties were therefore ordered to file their witness statements after which the case came up for hearing.

From the pleadings filed by the parties the court finds that the following facts are not in dispute:

That the defendant is a financial institution registered under the laws of Ghana and engaged in the business of universal banking. The court also finds that the plaintiff was at all times material to the suit a customer of the defendant bank.

That the plaintiff applied to the defendant for and was granted a mortgage loan in the sum of ₵530,000,000 now expressed as GH₵53,000 in March, 2007 to enable her purchase a five bedroom single storey detached house situate at Bejuahum, New Achimota Accra.

That as a pre-condition for the disbursement of the loan the plaintiff duly executed a facility letter dated the 19^th June, 2007 exhibit D and 1 herein.

The plaintiff has also admitted that the said facility was secured with a legal mortgage over the said house. This had been exhibited as exhibit 3 herein. The plaintiff has also admitted that in fulfillment of other pre-disbursement conditions under the facility, the plaintiff deposited the title deeds dated 30^th June 2006, exhibit 2 herein, and the mortgage deed dated 13^th February, 2007 with the defendant. The court finds that the mortgage was registered by the defendant on the 23rd September, 2011.

It is also admitted by the plaintiff that the said loan was disbursed to the plaintiff in February 2007 and defendant communicated same to the plaintiff by letters dated 15^th March, 2007 exhibit 4 and 22^nd June, 2007 exhibit 5 herein.

The plaintiff has pleaded in paragraph 6 of her statement of defence that

“The plaintiff will contend that even though she has fully repaid the loan facility obtained from the bank in excess to the tune of GH₵27,766.74 the defendant company continues to debit her account without any basis”

This averment by the plaintiff has been denied by the defendant in paragraph 14 of its statement of defence. It is therefore the duty of the plaintiff to lead credible evidence to establish the allegation that the plaintiff had fully repaid the loan in excess to the tune of GH₵27, 776.74. This is because section 17 of the Evidence Act 1975, Act 323 provides that:

“17. Allocation of burden of producing evidence

Except as otherwise provided by law,

(a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;

(b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

The court has also explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General &

Another [2012] 2 SCGLR 845 at 867 that:

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

See also Bank of West Africa Ltd vs. Ackun [1963] 1 GLR 176.

The court finds however that contrary to the assertion made by the plaintiff, not an iota of evidence was led by her attorney in proof of the allegation of having fully paid her debt and even in excess to the tune of GH₵27, 776.74. From the bank statement on the plaintiff’s account with the defendant exhibited as exhibit 18 herein, the plaintiff is recorded as having paid an amount of GH₵25,000 into her account. The plaintiff had pleaded, among others, in paragraph 9 of her Reply filed on the 17^th October, 2013 that

“The payment of the huge sum of GH₵25,000 was to clear all its indebtedness and to throw the mortgage account into credit.”

In the opinion of the court the averment in paragraph 9 of the Reply is an indirect admission by the plaintiff that her account was in debt and it also negates the plaintiff’s averment in paragraph 5 of her statement of claim that “she religiously adhered to the repayment plan by honouring all installment payments except when she was unable to honour her loan repayment as a result of ill health which lasted for twenty-four (24) months and which situation plaintiff duly notified the defendant….”

The court finds that on the 2^nd September, 2011 the plaintiff wrote exhibit 11 to the defendant complaining of ill health and asked for a suspension of repayment of her mortgage for a period of six months but the defendant by exhibit 12 agreed to grant the plaintiff a suspension for only a period of two months. Even then the plaintiff was notified of her duty to clear or pay an arrears then owing in the sum of GH₵2, 714. 27.

The court finds that immediately before the plaintiff paid the sum of GH₵25,000 into her account the plaintiff was owing, per exhibit 18, an amount of GH₵33,474.86 and so when the amount of GH₵25,000 was paid by the plaintiff into her account, her debit balance came to GH₵8,474.86 per exhibit 18. It is therefore not correct that when she paid the amount of GH₵25,000 into her account her indebtedness was wiped off and thereby throwing his account into credit.

During cross examination of the plaintiff the under mentioned questions were put to the plaintiff’s attorney who also answered them as stated thereunder:

“Q. You will also agree with me that from 10/9/13 till date Selina Asante had not made any repayment.

A. Yes. As far as we are concerned the bank has not treated us fairly based on their own letter they gave us hence we took them to court.

Q. You will also agree with me that from your own admission, the debt owed the plaintiff to HFC bank still remains outstanding not so?

A. Yes my lord as far as we have up to 2018 to liquidate the debt, we still owe the bank.”

From the answers given above by the plaintiff’s attorney, the court finds that the plaintiff admits that she is still indebted to the defendant and that since the 10^th of September, 2013 the plaintiff has made no payment to the defendant in respect of her mortgage repayment account.

Indeed this admission by the plaintiff’s attorney corroborates the defendant’s allegation that the plaintiff is still indebted to the defendant and that as of the 10^th September, 2013 the plaintiff’s indebtedness to the defendant stood at GH₵33,330.45. The law is stated quite clearly in Asante vs. Bogyabi [1966] GLR 232 at 240 that:

“Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view”

In this regard the court is enjoined to accept the defendant’s position that the plaintiff has not fully discharged her obligations towards the settlement of her indebtedness. Even then there is evidence on record, as shown by exhibit 18, that as of 2^nd September, 2013 the plaintiff owes the sum of GH₵33,330.45 to the defendant. The plaintiff who is the borrower in this matter is under a legal obligation to pay her debt. See SG-SSB vs. Hajaara Farms Ltd. [2012] SCGLR 1.

The court will hold therefore that the plaintiff has failed to lead evidence to prove her claim against the defendant. Consequently, the plaintiff’s claims are dismissed.

On the other hand the court is satisfied that the plaintiff is indebted to the defendant on its counterclaim. The court will therefore enter judgment for the defendant against the plaintiff in the sum of GH₵33, 330.45. The defendant shall also be entitled to exact interest on the sum of GH₵33,330.45 at the rate of 32% per annum which is the current agreed revised rate of interest from 10^th September, 2013 to the date of final judgment. The court will also award costs of GH₵5,000.00 to the defendant against the plaintiff.