IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
FIRST NATIONAL SAVINGS & LOANS CO. LIMITED - (Plaintiff)
NANA ACHIAA BOAKYE T/A NAKBAK ENT - (Defendant)
DATE: 2ND JULY, 2015
SUIT NO: BFS/77/14
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MR. SULLEY SAMBIAN FOR PLAIANTIFF
MS. VIVIAN M. GYAN FOR DEFENDANT
On 21/12/2013, the Plaintiff Bank instituted an action against the Defendant herein for three reliefs, namely:
a) Recovery of the sum of Five Hundred and Fifty Two Thousand Two Hundred and Forty-Seven Cedis ( GH¢ 552, 247.00) being the outstanding balance on loan and overdraft facilities granted to the Defendant pursuant to Banking facility Agreement dated 22nd June, 2011.
b) Interest on the sum at the contractual default rate of 60% per annum from 1st December 2013 till date of final payment.
c) Alternatively Judicial Sale of property described as Plot No. 6 Manu Crescent Pankrono, Kumasi.
The Plaintiff's case is that on or about 22nd June 2011, it granted a loan facility of One Hundred Thousand Ghana Cedis (GH¢100,000.00) to the Defendant who trades under the name Nakbak Enterprise to augment her business capital. The Plaintiff also extended an Overdraft Facility (O/D) of One Hundred and Fifty Thousand Ghana Cedis (GH¢ 150,000.00) to the Defendant for the same purpose. The tenure of the facilities were 24 and 12 months respectively, at an interest rate of 36% per annum. It was also agreed that the facilities could be called in if the Defendant failed to abide by the terms. The Defendant is said to have secured the facilities with the property on Plot N0. 6 Manu Crescent Pankrono, Kumasi. The instant action was therefore instituted upon the Defendant's default.
The Defendant's version is an outright denial of the Plaintiff's case. She averred that she was a customer of HFC Bank- Adum Branch where she encountered a Loan officer by name Fred Boakye Yiadom. She stated that at a point in time, she wanted a Letter of Credit (LC) to purchase fish from Dakar and the said Boakye Yiadom recommended a company by name West Capital company. She paid an amount of GH¢ 50,000.00 to that company but the company failed to establish the LC. Her money was not also refunded. Further, the Defendant averred that Fred Boakye Yiadom assured her that she will move to the Plaintiff Bank as a manager and would give her the money. Whilst in London where she is ordinarily resident, Plaintiff said she received a phone call from Fred Boakye Yiadom who requested her to send a written request for a loan to pay off her debt at HFC and she did exactly that. The Defendant contended that it was the said Boakye Yiadom who informed her that he had paid GHS 100,000.00 to HFC and moved her account to the Plaintiff Bank but she did not sign any documentation to that effect. In his capacity as Manager of the Plaintiff Bank, Boakye Yiadom is said to have transferred Twenty Thousand Pounds into the Defendant's Barclays Account in the UK as an overdraft (O/D), and at that time the cedi equivalent was GHS 50,000.00. She denied ever giving her title deeds in respect of Plot 6 Manu Crescent, Pankrono Kumasi to the Plaintiff as Mortgage for any Loan and that Boakye Yiadom requested for those documents for the purpose of making an indenture for her.
By way of Reply, the Plaintiff admitted that even though Fred Boakye Yiadom at some point in time worked for HFC and later the Plaintiff Bank, he did not grant loans. In the case of the Plaintiff Bank, their case is that a credit committee gives the approval and the Board of Directors approve of the Quantum. Again, the Plaintiff averred that First National Savings and Loans (FNSL) paid off the Defendant's Debt at HFC at her request. In answer to the Defendant's averments in relation to the security, the Plaintiff stated that it was the defendant who deposited the title deeds and even executed a memorandum of deposit. Later, she requested her property to be sold to liquidate her indebtedness to Plaintiff in furtherance of which Asenta Property Consulting was entrusted with the sale of the property.
The issues to be determined in this trial are as follows:
1. Whether or not the Defendant delivered Title Deeds in respect of Plot No. 6 Manu Crescent Pankrono Kumasi as Collateral for the facilities granted to her by the Plaintiff?
2. Whether or not the Defendant applied for and was granted a total amount of GH¢250,000.00 representing overdraft of GH¢150,000.00 and loan of GH¢100,000.00?
3. Whether or not Defendant executed any documents in respect of the two facilities?
4. Whether or not the Defendant is indebted to the Plaintiff in the sum of GH¢ 552, 247.00?
It is to be noted that on 21/10/2014, the Defendant submitted to judgment on admissions in the sum of GH¢150,000.00 so this trial is in respect of the outstanding balance of GH¢ 402, 247.00.
At the trial, evidence was adduced on behalf of the Plaintiff (now GN Bank) by its Operations Officer who formerly worked at the Credit Department. His testimony was that as a customer of the Plaintiff bank, the Defendant applied for a loan facility of GH¢100,000.00 and an overdraft of GH¢ 150,000.00 for twenty four months and twelve months respectively. He quoted the agreed interest rate on both facilities as 3% per month or 36% per annum. He said these transactions were in writing and in support of that he tendered a banking facility letter as exhibit A. An undated memorandum of deposit of title deeds was admitted as exhibit B. Other documents tendered are NAKBAK Enterprise statement of account (exhibit C); Credit Repayment schedule (exhibit D); assignment of stock (exhibit E).
The witness explained the transaction between the Plaintiff bank, HFC bank and the Defendant. According to him, the Plaintiff Bank outsourced the loan and O/D that the Defendant owed to HFC bank i.e. She requested FNSL to pay off her indebtedness to HFC. A correspondence between FNSL and HFC in respect of the outsourcing and a payment order made in favour of HFC were put in evidence as exhibits F and G respectively. As regards the disbursement and operation of the O/D, the witness stated:
“The GH¢100,000.00 loan advanced to the Defendant reflected as credit disbursement on 27/07/2011 on exhibit C. The payment to HFC also reflected on exhibit C on 26/07/2011, Banker's Payment (BP) number 000359 issued in favour of HFC before NAKBAK. This means we are rendering the service in favour of the customer. Per exhibit C, the amount is GH¢ 91, 068.89."
The witness continued:
“The balance on NAKBAK account before the draft was issued was GH¢ (49.50). This was a negative balance. It was negative because the O/D of GH¢150,000.00 had been approved and disbursed but on the face of exhibit C, you will not see the bulk amount of GH¢150,000.00 as we see in the case of the loan. When O/D is recorded, we only allow the customer to overdraw the account. This account was overdrawn. The O/D was recorded on 25/07/2011 in exhibit C. From 25/07/2011 per by exhibit C, all the balances are denoted in the negative sign meaning the account has been overdrawn."
Still on the operation of the O/D by the defendant, the witness said thus:
“Both facilities attracted a commitment fee of 2% which is paid up front. The 2% will amount to GHS 5000.00 i.e. on the two facilities of GH¢250,000.00. There was a cheque withdrawal by Owusu Ebenezer for GH¢37,000.00 on 03/08/2011; 16/08/2011 there was another cheque withdrawal by Owusu Ebenezer. The amount was GH¢30,000.00. On 27/07/2011, there was another cheque withdrawal by Owusu Ebenezer- GH¢ 30,000.00. If you put these withdrawals together, it will amount to GH¢ 97,000.00. On 04/10/2011, there was an instruction to transfer an amount of GH¢48,417.84 to NAKBAK. Roughly, if you add the amount we paid to HFC, the withdrawals that amount to GH¢ 97,000.00, the transfer of GH¢ 48, 417.84 and the processing fee of GH¢5,000.00 we get a figure of GH¢241,486.73 which is approximately the GH¢250,000.00 that was granted her."
Having established the disbursements, the witness went on to say that there were correspondences between Frederick Boakye Yiadom and the Defendant concerning her indebtedness. Two such emails were put in evidence as exhibits H and J. He denied that the Defendant deposited her title deeds with Mr. Boakye Yiadom for the purpose of obtaining an indenture on her behalf. Concluding, the witness stressed that since the Defendant executed exhibit A, she is bound by all the conditions therein.
Counsel for the Defendant subjected the witness to a lengthy cross-examination aimed at establishing that the defendant never executed any credit agreement with the Plaintiff Bank apart from the loan application she wrote for an amount of GH¢150,000.00 (exhibit 1). In answer to this line of questioning, the witness was emphatic that during the appraisal period, the Defendant came to the bank manager's office several times and he would be called in and given instructions “such as amend this or do that". The witness said he in turn gave instructions to an employee by name Desmond Browne to handle the application but he could not tell the exact point at which the facility letter and other related documents were signed by the Defendant. In relation to the cheque withdrawals, the witness again explained that whilst the Defendant was away in London, she instructed Ebenezer to present blank cheques signed by her. On each occasion, the witness would talk to Defendant on phone and she will instruct him as to the withdrawal amount to be written on the cheque. He will then process the cheque and give the money to Ebenezer. And, this arrangement was put in place before the Defendant left the jurisdiction and the Defendant was fully aware of all the transactions concerning the GH¢250,000.00 facilities.
When the Defendant mounted the witness box, she recounted how she met Frederick Boakye Yiadom which subsequently led to these credit transactions. According to her, she came to Ghana in the year 2011 to import Mackerel worth $ 760,000.00 USD from Senegal. At that time, she was a customer of HFC Bank where Frederick Boakye Yiadom was a credit officer. She was cash strapped so she first took a loan of GH¢60,000.00 and was looking for a company which could issue a Letter of Credit ( LC) in her favour. At this point, Frederick Boakye Yiadom introduced her to West Capital Company which demanded upfront payment of 15% the face value of the LC. She then paid this money through Frederick Boakye Yiadom who had introduced her to that Company. The Senegalese Company failed to supply the fish and did not also refund her money. Upon persistent demands on Frederick Boakye Yiadom, he told her that he would move to the Plaintiff Bank as a manager and that he would be able to pay off the money. Upon this assurance, Defendant said she put in a loan application for GH¢150,000.00 as in exhibit 1. Continuing, the Defendant said she instructed Frederick Boakye Yiadom to pay off her indebtedness to HFC and transfer the rest to her account in London. Reacting to the Plaintiff's claims, she insisted that apart from the GH¢150,000.00 she was not aware of any other facility granted to her by the Plaintiff bank and that she gave her title document to Frederick Boakye Yiadom for onward submission to another person for the preparation of a lease. She denied owing the bank the sum of GH¢552, 247.00.
During cross-examination, the Defendant admitted her dealing with West Capital had absolutely nothing to do with the Plaintiff Bank. She again said the GH¢ 150,000. 00 loan was not secured. However, she admitted Ebenezer Owusu acted as her agent and also identified her signature on all the cheques which Ebenezer used to withdraw money in respect of the O/D. These cheques were tendered through her as exhibits K,L,M series, N series, P and Q. Counsel asked a series of questions which point to the fact that the Defendant actually operated the O/D account even when she was outside the jurisdiction. The following portion of the cross-examination is so crucial:
Q. This Ebenezer was at all times your agent?
Q. Even in your absence, you kept on doing business through this account?
A. Yes. The reason is that Mr. Fred Boakye Yiadom told me that the money which was taken through him by West capital, he had put the money in my account. I instructed.
Ebenezer Owusu who was my assistant in the shop to go to the Bank to withdraw the money. So, Ebenezer will go there and I will call Mr. Fred Boakye Yiadom and ask how much he is supposed to take from the account. Sometimes he will call and say he had put some money in the account so I will call Ebenezer to go and withdraw the money. Ebenezer will go there with a blank cheque. Mr. Boakye Yiadom will withdraw the money to Ebenezer. I signed the cheques but the handwriting is not mine. It was through Mr. Boakye's instructions.
During cross-examination on 07/11/2014, the Defendant admitted that exhibit C is a true reflection of all the transactions she undertook on the account but she took the money because Frederick Boakye Yiadom had indicated to her that he had deposited money into that account. Irrespective of these withdrawals, the defendant denied ever requesting for any O/D from the Plaintiff bank.
I will consider the submissions made by counsel for the parties on these issues . i.e. (i) whether or not the Defendant applied for and was granted a total amount of GH¢250,000.00 representing overdraft of GH¢ 150,000.00 and loan of GH¢100,000.00 and (ii) whether or not Defendant executed any documents in respect of the two facilities?
For the Plaintiff, Counsel submitted that even though the defendant denied authoring exhibit A, the said exhibit together with exhibits C,D,F and G have been confirmed by the forensic expert (CW1) as having "similar form, good rhythm and similar identifying characteristics existing in them". He also contended that Exhibit D is a specimen signature of the Defendant and it was confirmed as having similar characteristics with exhibit A. Counsel invited the court to find that the Defendant executed exhibit A, and is therefore bound by the contents therein. He cited and relied on Oppong v Anarfi (2011) 1 SCGLR 556 at page 564 where the Supreme Court referred to the oft-quoted dictum of Lord Denning in Gallie v Lee (1969) 2 Ch 17 as follows:
"Whenever a man of full age and understanding, who can read and write, sign a legal document which is put before him for signature- by which i mean a document, it is apparent on the face of it, is intended to have legal consequences- then if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document."
Further, he asserted that the Defendant is estopped from denying that exhibit A is her deed and that document is binding on her. In support of this submission, he relied on IN RE Koranteng (Decd) Addo v Koranteng ( 2005-2006) SCGLR 1039 (holding 2) where the Supreme Court held thus:
“Under section 25(1) of the Evidence Decree, 1975 (NRCD 323), the facts recited in a written document were conclusively presumed to be true as between the parties to the document or their successors in interest. Section 25(1) had the effect of establishing an estoppel by written document which was applicable to the facts of the instant case. Although subsection (2) of section 25 had created an exception of recitals of consideration, the defendant in the instant case had been unable, by his parole evidence, to establish that he had paid for the disputed property for his own account."
On her part, Counsel for the Defendant recounted the evidence of both parties and contended that her client has no knowledge of exhibit A. She drew the court's attention to the fact that even though exhibit A was challenged, it was not among the documents sent for forensic analysis. She however conceded that it is the court's duty to draw its own conclusions from the opinion of the handwriting expert. Counsel made inferences from exhibit CE 1. According to her, CW1 Godwin Lavoe gave evidence that Arrow 1 only exists in exhibits B and W which was disputed and sent to him. Throughout the evidence of the Defendant she said she has never sighted exhibit A and did not execute it. She further contended that a close look at exhibit A also shows Arrow 1 which appears on exhibits B and E which the expert concluded was highly probable not to have been authored by the Defendant. In her view, exhibits A and E can safely be said not to have been executed by the Defendant and she urged the court to hold as such. Counsel pointed out that Fred Boakye Yiadom who was the manager at the time of the disputed credit transactions has been fired by the Plaintiff bank but he would have been a vital witness for the Plaintiff but the Plaintiff is unwilling to disclose his whereabouts . As such, she invited the court to hold that the failure by the Plaintiff to call Fred Boakye Yiadom is fatal to its case.
Did the Defendant in fact sign exhibits A, B and E? The expert's evidence will be considered at this point. Per exhibit CE '1", these were the materials for examination:
1. Signature card of First National Savings & Loans marked Exhibit "A"
2. Memorandum of Deposit of Title deeds marked Exh "B"
3. Account opening Form of First National Savings and Loans marked "C"
4. specimen signatures of Defendant marked "D"
5. Photocopy of Assignment of stocks marked EXH "E"
6. Photocopy of Westcap Inc. Application Form marked "F"
7. Photocopy of Driver's Licence marked " G".
From exhibit CE 1, the terms of reference was to determine whether the Defendant authored the reference signatures representing her on the Memorandum of Deposit of title deeds marked EXH "B" and the assignment of Stocks marked exhibit "E". This was based on the request of Counsel for the Plaintiff on 06/11/2014 for exhibits 1,B and E to be taken for forensic examination as well as the mandate for the opening of the account. The facility letter tendered as exhibit A in court was not intended to be part of the documents to be examined. In the circumstance, the exhibit "A" referred to in the submissions of counsel for the plaintiff is not the same document as what CW1 marked as exhibit " A" above. This mix up by counsel for the Plaintiff has flawed his arguments based on the Plaintiff's exhibit A as opposed to the expert's reference material which the expert marked as exhibit A. That notwithstanding, counsel's analysis of the law is perfect. The need to determine whether the Defendant signed exhibit A still remains.
In Quartey v King (1969) CC 122, CA , the Court held that handwriting can be proved by: (1) comparison with another specimen signature of the same person on another document; (ii) by calling the writer of the document or signature; or (iii) by calling a witness who saw the document written or signed. See also Conney v Bentum Williams (1984-86) GLR 301, CA.
Also, in Osei v The Republic (1976) 2 GLR 383, CA, the court expressed its view on disputed handwritings as follows:
“In jury trials a jury was not permitted to draw its own unaided conclusions from a comparison of handwriting because the guidance of an expert was a crucial requisite.
However, when the opinion was that of the court itself judges might form their own opinion on disputed handwriting.”
Therefore, I will proceed to form my opinion about the defendant's disputed signature on exhibit A. After a careful scrutiny, I notice that there are variations in the Defendant's admitted signatures on exhibit 1, the series of cheques tendered as exhibits N to Q, and her signature on the mandate form, exhibit CE 2. For example, her signatures on exhibits Q and 1 clearly lead to the irresistible conclusion that she is in the habit of varying her signatures. Had it not been her own admissions on oath, one would have been tempted to say that exhibits 1 and the exhibits N to Q series were signed by different persons. So it is highly probable that the signature on the last page of exhibit A can be that of the Defendant. But, some questions keep lingering in my mind when I read the last paragraph of the last but one page of exhibit A. It states:
“Please indicate your acceptance of the aforementioned terms by signing and returning the enclosed copy of this letter unamended within fourteen (14) days after which time this offer shall lapse unless extended which will be at the sole discretion of the FNSL."
Immediately after this paragraph are two signatures of a Credit Manager and Branch Manager of the Plaintiff Bank. About 2/3 of that page is left blank. Then on the next page, there is another document on a letterhead of FNSL with the name NANA ACHIAA BOAKYE indicating an acceptance on 12/07/2011. When examined closely, the 07 (July) was initially written as 02 ( July ). Yet, no one initialled that alteration as a standard banking practice. The signatures on exhibits B and E have similarities but there are differences in the appearance and characters when compared to the signatures on exhibits 1 and N to Q series. Here, i accept the expert opinion of CW1 that it is highly probable that the Defendant did not author any of the signatures attributed to her on exhibits B and E. That notwithstanding, it can be reasonably inferred from the entire circumstances of the case that the Defendant either executed the loan agreement (exhibit A) in her usual manner of varying her signatures or some other person might have executed the document on her behalf per her instructions. I say so because the entire circumstances of this case show clearly that the Defendant has always been aware of the loan and overdraft transactions on her account and has even admitted in court that exhibit C is a true reflection of the transactions between her and FNSL. Could FNSL have granted these facilities to her in the absence of any paper trail? Obviously not in the era of modern banking! From the evidence adduced by both parties as well as the submissions made by their counsel, there is no doubt at all that apart from the amount paid on behalf of the Defendant to HFC bank which she admits, she overdrew her balance on the account to the tune of GH¢145,417.84 and the bank also charged a processing fee of GH¢5,000.00. All these transactions were captured on exhibit C which the defendant has not challenged.
Her submission to judgment in the sum of GH¢150,000.00 moves the case to another level. She cannot rely solely on exhibit 1 to say that she rather requested for a loan of GH¢150,000.00 but not an O/D. A bank has the sole right to grant credit facilities in the manner it deems fit. It is entirely possible for a person to apply for a loan but the bank may offer another form of credit which the customer is at liberty to accept or reject. Therefore, exhibit 1 does not carry any weight in terms of the actual facilities granted to the Defendant. Having benefitted from the Loan facility of GH¢ 100,000.00 and O/D facility of GH¢150,000.00, this court cannot turn a blind eye to the Plaintiff Bank's predicament which could have been avoided if its officers who handled these credit transactions had been diligent instead of succumbing to "what master or manager says".
Even if the Defendant did not execute any credit agreement as she alleges, her liability to pay back the monies she took from the bank remains unchanged as will be demonstrated shortly. First, I will consider the amounts overdrawn on the account in issue.
What is the legal import of the withdrawals made by the Defendant's agent upon her instructions at periods when the account in issue was red?
In Erlinger's Modern Banking Law (2002) page 690 Oxford University Press, the Learned authors discussed the legal nature of an unauthorized overdraft thus:
“... Unless the bank has undertaken to grant an overdraft, where there are insufficient funds credited to the customer's account to cover the full payment of the customer's payment order, the bank may ignore the order completely. In such circumstances, the customer's payment order stands as an offer to the bank to extend to him on the bank's usual terms as to interest and other charges. The bank has the option of accepting or rejecting the offer, but will be deemed to have accepted it where it executes the customer's payment order, for example, by honouring the customer's cheque. Allowing the customer to run up or increase an existing overdraft in this ad hoc manner may create a course of dealing that binds the bank ... The customer may be charged interest at a higher rate, or incur extra bank charges, if his account becomes overdrawn, or an existing overdraft limit is exceeded, without the bank's prior agreement."
The bank receives compensation for this kind of accommodation by way of the receipt of interest and other charges. Indeed in Lloyds Bank plc v Voller (2000) 2 All ER (Comm.) 978 at 982 ( CA), it was held that the Bank would have been entitled to apply its higher standard rates for unauthorized overdrafts had it wished to do so. See also Verjee v CIBC Bank and Trust Co (Channel Islands) Ltd. (2001) Lloyds Rep. Bank. 279 where it was held that the mere fact that a cheque was drawn against an inadequate balance did not put the bank on enquiry and that by honouring the cheque, the bank did not commit a breach of duty of care to its customer. In the instant case where the Defendant acknowledges presenting cheques for payment through her agent at various times when she had insufficient credit in her account, she was deemed to have made an offer to the bank to be given credit on the bank's usual terms as to interest and other charges. To the extent that all these cheques were duly honoured by the Plaintiff bank, it is reasonable to infer that the bank accepted the Defendant's offer to be given credit on that ad hoc basis subject to the bank's usual interest for O/D facilities plus other charges. In the light of the foregoing analysis and conclusions, it is immaterial whether or not the Defendant applied for and was granted an O/D facility. The truth is that she overdrew her account to the tune of GH¢145, 417.84.00 ( i.e. the cheques amounting to GH¢ 97,000.00 and transfer of GH¢48,417.84) plus the GH¢5,000.00 processing fees. The bank is not a charitable institution and all these cannot be considered as gifts from Santaclaus or Mrs. Claus! Her explanation that she withdrew the money because Mr. Frederick Boakye Yiadom had intimated to her that he had deposited monies into her account is unacceptable as the same contradicts her statement of defence. By paragraphs 4, 5 and 6 of her statement of defence filed on 06/05/2014 , she pleaded thus:
4. The Defendant states that she wanted a Letter of Credit to purchase fish from Dakar and the said Fred Boakye Yiadom recommended a company by name West Capital Company.
5. Repeating paragraph 4 supra the Defendant states after paying GH¢50,000.00 to West capital Company, it did not do the LC neither did it return her money.
6. The Defendant upon confronting Fred Boakye Yiadom, he told her to be patient and that he would give her the money as he is going to move to the Plaintiff bank as manager.
From the point of view of the Defendant's own statement of defence, if Frederick Boakye Yiadom was to reimburse her at all in respect of their private dealings, it ought to be GH¢50,000.00 and not the GH¢145,417.84 plus GH¢5,000.00 overdrawn on her account. Her story in court would then be a departure from her own pleadings.
In Appiah v Takyi (1982-83) 1 GLR 1 at page 7 per Mensah-Boison JA:
“Where there is a departure from pleadings at trial by one party whereas the other's evidence accords with his pleadings, the latter's is, as a rule, preferable."
In the more recent case of Yaa Semanhyia & Ors v Elizabeth Bih & ors (2006) 5 M.L.R.G. 184 at 195, the court per Dotse JA (as he then was) expressed the same view thus:
“It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must face and or bear the consequences." See also Zambrama v Segbedzi (1991) 2 GLR 221.
Going by the principles enunciated in the above cited cases, the Plaintiff's account on the O/D facility is to be preferred because the Defendant's version which does not accord with her own pleadings is doubtful. The O/D is therefore recoverable on the Bank's usual terms.
As regards the Loan, i will say that even in the absence of a valid contract between the parties, the loan amount is recoverable on the principle of 'Unjust Enrichment". This principle was applied in the case of Quagraine v Adams (1981) GLR 599 as follows:
"whenever a defendant was unjustifiably enriched at the expense of a plaintiff, the plaintiff could compel his ill-gotten gains out of him on the principle of unjust enrichment." Dictum of Lord Wright M.R. in Brook's Wharf and Bull Wharf Ltd. v. Goodman Brothers  1 K.B. 534 at p.545, C.A. applied.
With the Defendant's liability to the Plaintiff firmly established, I move to the outstanding issue on the deposit of title deeds. Whilst commenting on the Defendant's signatures in the course of this judgment, i indicated my approval of the opinion of the hand writing expert who gave evidence as CW1. Just like exhibits A and E, exhibit B could have either been executed by an agent of the Defendant or she could have signed it differently for reasons best known to her. Besides the doubtful signature, exhibit B is not dated and there is a real doubt as to the time it was allegedly made. It has been demonstrated that the Defendant is ordinarily resident in the UK. The risk of doing business with such a customer is very high and I do not think the Plaintiff bank would have given her unsecured credit. The two email correspondences between the Defendant and her so called "bosom brother/ friend " who was the Plaintiff's branch manager at the time of this transaction are very relevant as far as the deposit of title deeds is concerned. It is this same person the Defendant alleges she gave the title deed to for the purpose of obtaining an indenture. Yet, the said manager turns round to discuss the "foreclosure" of the same property in exhibit J as follows:
From: Frederick Boakye-Yiadom(email@example.com
Sent: Wednesday, May 29,2013 5:14 PM
Germadzie Subject: OUTSTANDING DEBT- ASSENTA
Nana good day,
Long time. I have been trying to reach you on your phone to no avail. It is about the property you want Assenta to dispose on your behalf and use the funds to pay off your outstanding loan?
I (it) looks like Assenta is not making any headway. I want to find out if it would be possible to give FN power of attorney to foreclose the property and use part to clear your exposure and the rest payable into your account.
Please note that, the more we delay, the more interest is accruing on the balance which currently stands at GH¢436,977 as at May 29, 2013.
I await for your response. Please treat this as urgent.
Frederick Boakye Yiadom.
If indeed the property was used as security, why would the Branch Manager turn round to request for a power of attorney from the Defendant to be able to foreclose? Was this move necessary at all? Could the Bank not have exercised its right under the Borrowers and Lenders Act, 2007 Act 773? The relevant parts which the Plaintiff bank could have resorted to are these:
"Section 33. Remedies of lender on default
Where a borrower fails to pay an amount secured by a charge under this Act, the lender may
(a) sue the borrower on any covenant to perform under the credit agreement, or
(b) realise the security in the property charged on notice to the person in possession of the property.
Section 34. Lender’s right to possession
(1) In the exercise of right of possession of property that is subject to a charge to secure a borrower’s obligations under a credit agreement, a lender is not obliged to initiate proceedings in court to enforce the right of possession.
(2) Where a lender is unable to enforce a right of possession in a peaceable manner, the lender may use the services of the police to evict the borrower or other person in possession pursuant to a warrant issued by a court. "
Let me consider the entire transaction- the memorandum of title deed is undated, when was it made? The Defendant disputes the signature and the expert says she did not sign it; the branch manager at the time makes an urgent request for a power of attorney to dispose of this property. Taking all these factors into consideration, it is more probable than not that the Defendant voluntarily handed over the title documents to Frederick Boakye Yiadom but the officers acting on behalf of the Plaintiff Bank did not ensure that the document was properly executed. This blunder on the part of the officers of the Plaintiff bank tasked to handle the loan /security processhave let the bank down. I do not think this undated and doubtful security document is enforceable.
It appears to me that the accounts on the two facilities were merged and the Defendant has admitted exhibit C as a true reflection of the transactions on the account. I have carefully looked at exhibit C. The last entry is the balance as at 31/03/2014. The total debit at that time is stated as GH¢800,500.09 less the total credit of GH¢265, 589.44. The Defendant's outstanding indebtedness to the Plaintiff bank as of 31/03/2014 stood at GH¢ (534, 910.65.). This is lower than the GH¢552, 247.00 endorsed on the writ of summons. Since judgment on admissions has already been entered against the Defendant in the sum of GH¢150,000.00, I will deduct that amount from the debit balance as of 31/03/2014 and which was GH¢ 534,910.65. The balance outstanding is GH¢384,910.65. This is what the Plaintiff is entitled to.
Accordingly, I hereby enter judgment in favour of the Plaintiff against the Defendant in the sum of GH¢384, 910.65. In order to do substantial justice, I will order that the same interest rate which both counsel agreed on with respect to the admitted GH¢ 150,000.00 is to be applied. Thus, the Defendant will pay interest at the rate of 36% per annum on the sum of GH¢384, 910.65.Guided by the last entry on exhibit C, interest is to run from 01/04/2014 to the date of final payment.
Having considered the provisions of order 74 of C.I. 47, I award cost of GH¢10,000.00 against the Defendant.