JUDGEMENT

i.     Introduction:

[1] The Plaintiff Company, Chrisline Financial Services is a Company registered under the laws of Ghana and engages in the business of providing financial services to its customers. The Plaintiff contends that it granted the Defendant who is a Customer and trades under the business name Naa Abekan Lube & Energy various loan facilities for her business pursuant to a loan application by the Defendant. The Plaintiff contends the Defendant has breached the terms of the agreement. The issues for my resolution in this case include:

(i) whether or not the rate of interest on the various loan facilities granted to the Defendant on the 18th of October, 2006 and 23^rd November 2006 respectively was 6% per month, or 6% per annum, 

(ii) whether or not the rate of interest on the various loan facilities granted to the Defendant on the 6th of December, 2006 and 11th December 2006 respectively was 5% per month, or 5% per annum; and

(iii) whether or not the Defendant has been aware of the status of her account at all material times.

In effect, the Court is to determine whether the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons.

[2] The Plaintiff’s Writ of Summons and the Statement of Claim issued on March 11, 2010 was for the following reliefs:

(A) Payment of the overdue sum of GH¢345, 741.17 being the consolidated debt on account of several loan facilities granted by Plaintiff to the Defendant as at 22^nd February 2010. 

(B) Interest on the said outstanding amount at the agreed rate of 5% per month from 23^rd February 2010 to date of final payment.

AND/OR in the alternative

(C) The judicial sale of the collateral securities; the landed properties situated at Dome in Accra subject matter of indenture No. AR/2113/96 and LV3826/96.

(D) Costs.

(E) Any further orders.

[3] Upon the service of the Writ of Summons on the Defendant she entered Appearance through her lawyers Zoe, Akyea and Co on the 4th of June 2010. The Defendant’s lawyer however withdrew as Solicitor for the Defendant on the 9th of February 2012 but subsequently re-filed as appointed lawyers for the Defendant on 27th July 2012. The record shows that The Defendant filed her Statement of Defence on the 29th of September 2010 and counterclaimed against the Plaintiff as follows;

(i) A declaration that and concerning the monies advanced to the Defendant by the Plaintiff, the exigible interest was and is 6% per annum and not 6% per month.

(ii) An order of accounts.

(iii) Costs, including solicitor’s fees. 

[4] The Plaintiff filed a reply and defence to the Counterclaim on October 13, 2010 and filed an Application for Directions on June 1, 2011 and formulated the above stated issues. The Court’s record further confirms that on the 5th of July, 2013 the court appointed Mr. Robert Nii Aryee Tackie of the Judicial Service as a referee and ordered that he audits the books of account of the parties and submit same to the court. There was a long delay in the prosecution of the matter due to many reasons but further to the filing of a Notice of Intention to Proceed by the Plaintiff’s Counsel in or about July 2017, the Court’s appointed referee tendered his audited report to the Court in July 2018.

[5] When the suit came before me for trial, the Defendant and her lawyer of record were absent. From the record of service, the Defendant’s lawyer of record is Zoe, Akyea and Co, whose address on the record is No. 12 3rd Ringway, Ringway Estates, Osu-Accra. The Court on July 9, 2018 ordered the parties to file their witness statements by August 15, 2018 and further ordered the Plaintiff to serve the Defendant’s Counsel of record with a Hearing Notice and the Court’s Notes. The Plaintiff complied with the order to file the witness statement but the Defendant’s Counsel failed to comply. The Court notes that after failing to comply with the order to file the witness statement and pretrial checklist the suit was adjourned to November 22, 2018 for the mandatory case management. The Case Management Conference proceeded and the suit was set down for trial. Again the Court ordered that a Hearing Notice be served and same was served but both the Defendant and Counsel neglected to attend.

[6] Pursuant to the provisions of Order 36 Rule 2 (a) of CI 47, I proceeded to hear the evidence of the Plaintiff. I also note that another hearing notice was served on Counsel after the trial started and the Defendant was given the opportunity to attend and to cross-examine the Plaintiff’s witness but she failed to attend and neither did counsel. I have gone to this extent to put on record how the Court ensured that the Defendant was given the opportunity to contest the Plaintiff’s claim but in clear violation of the rules both Counsel and the Defendant failed to comply with the Court’s orders.

[7] Plaintiff meanwhile complied with the orders made and filed the witness statement and the Checklist for the mandatory Case Management Conference. Pursuant to the provisions of Order 36 Rule 2 (a) of CI 47, the Court proceeded to hear the evidence of the Plaintiff. I note that the reason why the Court opted to serve the Defendant’s Counsel of record with hearing notices even though they failed to comply with the previous orders to attend Court was that, on the authorities, where a Court has taken a decision without due regard to a party who was absent at trial because he was unaware of the hearing date, that decision is a nullity for lack of jurisdiction on the part of the Court. See: BARCLAYS BANK v. GHANA CABLE CO [1998-99] SCGLR 1 and the earlier case of VASQUEZ v. QUARSHIE [1968] GLR 62.

[8] On the other hand, the law is that where the party is sufficiently made aware of the hearing date and/or offered the opportunity to appear in court to answer/defend or as in the present case where the Defendant was duly served but he failed/refused to attend Court, the Court is entitled to proceed to determine the case on the basis of the evidence adduced at the trial, notwithstanding the absence of the party, in this case the Defendant. See Order 36 of the High Court Civil Procedure Rules, (2004, CI 47) and also IN RE: WEST COAST DYING IND. LTD; ADAMS v TANDOH [1987-88] 2 GLR 561.

ii. Plaintiff’s Evidence

[9] The Plaintiff’s evidence was given by Mr. Joshua Tetteh, a Loan Recovery Manager of the Plaintiff’s Company. Mr. Tetteh testified that by a letter dated 16th October 2006, “the Defendant applied to the Plaintiff’s for a loan sum of One Hundred Million old Cedis (¢100,000,000.00) which figure presently amounts to Ten Thousand Ghana Cedis (GH¢10,000.00) at a monthly interest payable over a period of three (3) months”. A copy of the loan application was tendered at trial as Exhibit “A”. Mr. Tetteh further testified that by a letter dated 19th October, 2006 the Plaintiff approved and advanced to the Defendant the loan sum of (¢100,000,000.00). A copy of the credit sales agreement was tendered as Exhibit “B” by Mr. Tetteh.

[10] According to the Plaintiff’s witness the Defendant on November 22, 2006 applied for an additional loan of Sixty-Six Million old Cedis which is presently Six Thousand Six Hundred Ghana Cedis ((GH¢6,600). The Plaintiff’s witness tendered as Exhibit “C”, a copy of that application letter. It is the case of the Plaintiff that the second loan application was also approved on November 23, 2006 at a monthly interest rate of 6% for a period of two (2) months. A copy of the approval letter was tendered as Exhibit “D” at trial. The Plaintiff’s witness further testified that “on the 6th of December 2006 the Defendant again applied for a third loan of (¢150,000,000) old Ghana Cedis (GH¢15,000.00) and the Plaintiff approved and granted same to the Defendant at 5% monthly interest, repayable within two (2) months”. Both the loan application and the loan approval letter with repayment schedule were tendered as Exhibit “E” Series.

[11] According to the Plaintiff’s witness by a letter dated 12th December 2006, the Plaintiff gave the Defendant a fourth loan facility of GH¢45,000.00, payable over a period of four (4) months at 5% monthly interest. Again, the Plaintiff tendered as Exhibit F Series, being copies of the loan application, approval letter and the repayment schedule letters. According to the Plaintiff’s witness the purpose of the several loan facilities was to provide “working capital to the Defendant to enable her purchase Liquid Petroleum Gas from Engen Ghana Ltd., for sale to customers”.

[12] The Plaintiff’s witness further testimony is that “the loans were secured by land situate at Dome in Accra, and covered by indenture with registration Nos. AR/2113/96 and LV 3826/96”. According to Mr. Tetteh the Plaintiff’s information is that currently the collaterals have been sold to a third party. He tendered as Exhibit “G”, a copy of a registered indenture.

[13] According to the Plaintiff, owing to the Defendant’s irregular payment decisions and her non-compliance with the payment schedules, her indebtedness to the Plaintiff “on account of the loan facilities stood at GH¢345,741.17 as at 22 February, 2010”. According to Mr. Tetteh the “Defendant has failed to liquidate the aggregate debt in spite of several demand notices” issued to her.

[14] Mr. Tetteh also testified and reminded the Court that the referee appointed to audit the account of the parties issued a report and by that report as of February 28, 2010 the Defendant owed the Plaintiff Company an amount of GH¢286,569.60. The Court notes that on 9 July 2018 a copy of the audit report was tendered and same was admitted as Exhibit “CE1” by the Court. The Plaintiff also attached a copy of the audit report as Exhibit “H” and same was adopted by the Court. According to the Plaintiff it issued the instant writ of summons for the reliefs endorsed on the writ against the Defendant because the Defendant shall not pay off the loans unless compelled by the Court. The Plaintiffs called no other witness before closing its case and implored the Court to grant the reliefs endorsed on the writ of summons.

[15] The Defendant filed a statement of defence and though conceded taking four loan facilities from the Plaintiff she denied the monthly interest rate figures. According to the Defendant the interest rates were per annum and not monthly. The Defendant further averred that she has made substantial payments to the Plaintiff but it is “the Plaintiff’s own unilateral enforcement of a monthly interest payment rather than the annual interest payment which might have ballooned the debt”. It also averred that the Plaintiff has never delivered any statement of account to the Defendant despite repeated demands. In the circumstances the Defendant pleaded that “the Defendant demands that this Honourable Court order, that on the basis of the rate of interest originally agreed upon i.e., the annual interest charges of 6%, the parties go into accounts to determine the Defendant’s indebtedness, if any”, and therefore denied the Plaintiffs’ claim and averred that the Plaintiff is not entitled to the reliefs endorsed on the Writ of Summons and Counterclaimed.

ii. The Court’s Analysis & Opinion:

[16] Notwithstanding the absence of the Defendant and Counsel at the trial, I have subjected the evidence of the Plaintiff’s witness to the prescribed standard of proof as provided under sections 10 –14 of the Evidence Act 1975 (NRCD 323). I find that the evidence adduced by the Plaintiff is consistent with the pleadings and that from the evidence, there has been a breach of the agreement between the Plaintiff and the Defendant who has failed to pay back the money for the loan facilities granted to her by the Plaintiff.

[17] I have also examined the Defendant’s statement of defence with the view to establishing whether or not even with her absence at the trial, any jurisdictional or other crucial legal defence has been raised by the Defendant’s pleading. I found none. In any event, the Defendant denied herself the opportunity of coming to Court to defend the action. As stated above, the Defendant did not appear at the trial in spite of numerous Hearing Notices served on her through the Counsel of record.

[18] It is trite that pleadings constitute allegations/assertions and the basis of each party’s case as opposed to evidence, therefore when the assertions are not substantiated the Court has no business making findings upon them. As was observed by Charles Crabbe JSC in HAMMOND v ODOI [1982-83] 2 GLR 1215 at 1235

“Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making… Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings”.

[19] Clearly, in the absence of any testimony to substantiate the assertions made by the Defendant in her defence filed they remained unproven assertions and therefore I have no difficulty dismissing same and also her counterclaim. Having diligently scrutinized the evidence and the audit report prepared by Mr. Robert Nii Aryee Tackie of the Judicial Service, I note that that the piece of evidence by the Plaintiff that the interest was monthly and not annually was not contradicted by the Defendant who in my opinion proffered no scintilla of evidence to establish that the interest was indeed per annum as she alleged. According to the Court appointed referee she also failed to participate in the work of the referee despite giving the opportunity to do so.

[20] I have examined the issues set down for determination at this trial, and I find that the Plaintiff has succeeded in adducing sufficient evidence in resolving the issues set down for the Court’s determination. It is my holding that all those issues be resolved in favour of the Plaintiff.

[21] From Plaintiff’s evidence, and the audit report as of February 28, 2010 when the Writ of Summons was issued the Defendant’s indebtedness to the Plaintiff was GH¢286,569.60. I hereby enter judgment in the said amount and not the sum of GH¢345, 741.17 endorsed on the writ of Summons. Based on the evidence, since the amount of GH¢286,569.60 included interest, the Court hereby orders that the Plaintiff is entitled to interest at the prevailing commercial bank rate till the date of final payment.

[22] I hereby find for the Plaintiff and accordingly order the recovery of the sum of GH¢286,569.60 from the Defendant. The Plaintiff shall recover interest on the amount of GH¢286,569.60 at the commercial bank interest rate from March 1, 2010 until the date of final payment.

[23] Further, taking into consideration the factors under Order 74 of C.I. 47 and the conduct of the Defendant and the numerous hearing notices issued and relying on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I assess the cost of this action at GH¢15,000.00 in favour of the Plaintiff. Accordingly ordered.