The Plaintiff endorsed his writ of summons and statement of claim for the recovery of the sum of GH¢60,000.00 which the Defendant borrowed from him, but failed to repay contrary to a promissory Note dated November, 5, 2014. He also claimed interest on the said amount.

It is to be noted that on 26/05/2015, judgment on admissions was entered against the Defendant in the sum of GH¢40,000.00. Therefore, the trial was in respect of the outstanding balance of GH¢ 20,000.00.

The issues set down for trial are as follows:

Whether or not the defendant was granted a financial assistance of GH¢ 52, 500.00 on 05-11-2014?

Whether or not the Defendant again took an amount of GH¢ 7,500.00 in addition to the GH¢52,500.00 as financial assistance and issued a cheque in respect of same for payment?

Whether not the Plaintiff granted a financial assistance and added an amount of GH¢12,500.00 by way of interest for one month?

Any other issues raised in the pleadings.

At the trial, the Plaintiff relied on his witness statement filed on 27/05/15. Two witnesses who testified on behalf of the Plaintiff also relied on their witness statements filed on the same date.

Per the Plaintiff's evidence-in-chief, the Defendant, his son (Kofi Asante) and a friend of the Plaintiff (Issah Yakubu) came to his house sometime in October, 2014. The Defendant told him that his son had gained admission into a university abroad and that he had no money to fund the travelling and other expenses. The Defendant showed him his redundancy letter and indicated that looking at the time his redundancy package will be paid to him, the deadline for making the payments for his son would have elapsed. Therefore, he sought a financial assistance of GH¢80,000.00 from the Plaintiff.

Continuing, the Plaintiff said he did not have money that day so he directed them to come at a later date. On that subsequent day, the Plaintiff said he gave a total amount of GH¢52,500.00 to the Defendant and that his son, Derrick Agbesi who has now travelled to Australia to further his studies was present. The Defendant promised to repay the GH¢52, 500.00 by the end of November, 2014.

Two weeks later, the Plaintiff was uncomfortable with the fact that the transaction was not documented. Thus, the parties herein, the Plaintiff, Issah Yakubu and Derrick Agbesi ( Plaintiff's son) went to a "typewriter" by name Bartholomew Syne Ackah at Obuasi Tutuka for the preparation of a promissory note in respect of the GH¢52,500.00. The said Syne Ackah took instructions from the parties, prepared the promissory note, read it out in English language, and explained the same in Twi language, to the hearing of all present. Thereafter, the Plaintiff signed and his witness, Derrick Agbesi, also signed. The Defendant thumb-printed and his witness, Issah Yakubu, also signed. The promissory note was put in evidence as exhibit A.

In addition to the amount already received by the Defendant, the Plaintiff told the court that some days later, the Defendant came to him and requested for additional GH¢10,000.00, but he could only raise GH¢7,500.00 for him. To show his commitment, the Defendant issued a cheque drawn on Agricultural Development Bank, ADB with the face value of GH¢7,500.00, and told Plaintiff to present it sometime in December, 2014 or January, 2015 by which time his redundancy package would have been paid. On January 6, 2015, the Plaintiff said he duly presented the cheque but the bank refused to honour it on the standing instructions of the Defendant. A copy of the returned cheque was put in evidence as exhibit B.

Reacting to the assertions contained in the Defendant's statement of defence, the Plaintiff denied that the defendant did not borrow the money for the purpose of acquiring a land and insisted that the Defendant showed him a copy of his redundancy letter before the money was given to him. He also denied the Defendant's assertion that cash of GH¢40,000.00 was given to him as financial assistance, but GH¢ 12,500.00 was added as interest.

Counsel for the Defendant put across the Defendant's case to the Plaintiffs but he denied the same, and insisted on what he had said in his evidence-in-chief.

Issah Yakubu who is said to have initially introduced the Defendant to the Plaintiff, testified as PW1. He corroborated the evidence of the Plaintiff as regards the GH¢52,500.00 advanced to the Defendant, the Defendant's subsequent request for GH¢10,000.00 out of which Plaintiff gave him GH¢7,500.00 as well as the circumstances under which exhibit A was prepared. He also confirmed that he witnessed exhibit A. Concluding, PW1 denied that the Plaintiff gave GH¢40,000.00 to the Defendant and added GH¢ 12,500.00 as interest.

Mr. Bartholomew Syne Ackah is the licensed letter writer who is said to have prepared exhibit A. He tendered in evidence copies of similar documents he had prepared for the Defendant in the past (exhibits E, F and G). When the parties approached him, PW2 said the Defendant explained to him that he had collected GH¢52,500.00 from the Plaintiff and that he wanted him to prepare a document as evidence of the fact that he had taken that amount from the Plaintiff to be re-paid at an agreed date. Based on this instruction, PW2 said he prepared exhibit A ( he tendered his copy which he had kept for his records as exhibit H). PW2 confirmed that the Defendant thumb printed exhibit A voluntarily, after the contents had been explained to him and he had understood same. Concluding, PW2 said neither the Plaintiff nor the Defendant told him the Plaintiff gave the Defendant GH¢ 40,000.00 and added GH¢12,500.00 as interest and that all that the parties told him was what he reduced into writing in exhibits A and H. Both PW1 and PW2 stuck to their respective testimonies when counsel for the Defendant sought to challenge the same under cross-examination.

The Defendant's version of the rival stories is that sometime in October, 2014, he told his friend Issah Yakubu ( now PW1) that he needed money to undertake large scale farming. Three days later, Issah Yakubu led him to the Plaintiff who loaned him GH¢ 5,000.00 at his request on the condition that an interest of GH¢2,500.00 was payable per month. Subsequently, the Defendant said Issah Yakubu led him to the Plaintiff to collect GH¢5,000.00 on three occasions which he knew attracted GH¢2,500.00 interest per month. On the 5^th occasion, the Defendant said he collected another GH¢5000.00 from the Plaintiff on the same terms and to show good faith, he signed a blank cheque without a date and gave same to the Plaintiff. It was when the Defendant could not repay the money at the end of November, 2014 that the Plaintiff added another GH¢2,500.00, making a total of GH¢40,000.00. To the best of his knowledge, the Defendant said he took a loan of GH¢ 25,000.00 from the Plaintiff at an interest of GH¢ 2,500.00 per month.

Further, the Defendants denied that exhibit A was prepared in his presence. His version is that since he was not present, it was the plaintiff who dictated whatever is on that document to PW2. Concluding, the Defendant said there was no occasion when PW2 read exhibit A to him after which he was made to thumb print. He questioned why he was not made to sign exhibit A at the time everybody else signed?

Whether or not the defendant was granted a financial assistance of GH¢ 52, 500.00 on 05-11-2014?

On one hand, the Plaintiff's evidence that he gave an amount of GH¢52,500.00 to the Defendant sometime in October , 2014 without interest and that the same was reduced into writing two weeks later, is in line with what he pleaded in his statement of claim filed on 09/01/2015. Further, his evidence was corroborated by two witnesses.

On the other hand, the Defendant's testimony in court sharply contradicts his statement of defence filed on 30/01/2015. Per paragraphs 6, 7 and 8 of his statement of defence, he averred that:

6. Defendant partially admits paragraph 8 of the Plaintiff's statement of claim and explains that Plaintiff gave him a principal amount of GH¢ 40,000.00 physical cash as a form of financial assistance but an amount of GH¢ 12,500.00 was added as a form of interest, totaling the GH¢52,500.00

7. Defendant repeats the immediately preceding paragraph and further states that it was mutually agreed between the Plaintiff and Defendant that the total sum of GH¢52,500.00 was Defendant's full and sole indebtedness to Plaintiff. Defendant also adds that it was based on this mutual understanding that the promissory note was executed.

8.... All averments in paragraphs 9,10,11 and 12 of the Plaintiff's statement of claim are categorically denied by the Defendant. By way of defence, Defendant contends that his only indebtedness to Plaintiff is the amount of GH¢52,500.00 as per the promissory note executed by both Plaintiff and Defendant.

Whilst in Court, the Defendant said he borrowed GH¢5,000.00 on five occasions from Plaintiff at an interest rate of GH¢2,500.00 per month and that by November, 2014, interest of GH¢12,500.00 had accumulated on the total principal amount of GH¢25,000.00. It was in respect of this that he said his indebtedness as at November, 2014 was GH¢40,000.00.

The Defendant signed his statement of defence in person and he is bound by the assertions contained therein. The promissory note, exhibit A, which he alluded to in his statement of defence is dated 05/11/2014. Thus, if at that time his indebtedness stood at GH¢ 52,500.00 as admitted by him in his defence, how can he turn round in court to say that he took a loan of GH¢ 25,000.00 and together with interest, his indebtedness as at November, 2014 was GH¢ 40,000.00? The Defendant could, not explain away this inconsistency which goes to the root of the case in either his examination-in-chief or during cross-examination. He is obviously not worthy of credit as far as this issued is concerned.

What then, is the legal implications of this complete departure from the Defendant's pleadings? It is that the party whose evidence in court is inconsistent with his pleaded case stands to lose. In Appiah v Takyi ( 1982/83) 1 GLR at pg 7, Mensa Boison J.A. explained this principle in these words:

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.

This principle was re-echoed in Yaa Semanhyia & Ors v Elizabeth Bih & Ors ( 2006) 5 M.L.R.G. 184 at 195 per Dotse JA ( as he then was) thus:

It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must fail, or bear the consequences thereof. See also Zambrama v Segbedzi (1991) 2 GLR 221, CA.

From the foregoing, the court finds that the Defendant's evidence in relation to the principal amount given to him by the Plaintiff is not credible. On the balance of probabilities, the Plaintiff's version of the rival stories is preferable.

One question remains unanswered. Indeed, Counsel for the Defendant has raised concerns about the fact that the Defendant is semi-literate and therefore cannot be bound by the contents of exhibit A. There is no doubt that on the face of exhibit A, the Defendant thumb printed and it can be presumed that he is not literate in English Language. But, that presumption is rebuttable because it is not always the case that only illiterate persons thumb print instead of signing their signature.

The last paragraph of exhibit A will pass for an interpretation clause, irrespective of the form. Moreover, PW2 who prepared exhibit A for the parties has said on oath that he read over and explained the document to the parties in Twi language before the parties signed or made their mark.PW2 even went further to tender similar documents he had prepared for the Defendant in the past and these were admitted without any objection from the Defendant. The documents just referred to are exhibits "E", "F", " and "G" . In all these documents, Solomon Agyei thumb printed as a debtor for monies received from his various creditors. To the extent that the Defendant did not raise a finger at exhibits, E, F and G, whose form and subject matter is the same as exhibits A and H, i.e. monies borrowed by Solomon Adjei, he is precluded from denying that he understood the content of all the documents covering the monies he had borrowed. He cannot hide behind illiteracy to avoid his legal obligations.

In the case of Owusu v Kumah (1984-86) 2 GLR 29, CA holding 1 (then the Highest Court) stressed that:

The main object of the illiterates Protection Ordinance, Cap b262 ( 1951 Rev) was to protect illiterates for whom documents were made. section 4 of CAP 262 obliged every person writing a letter or document for an illiterate to read or cause it to be read over and explained to the illiterate and also ensure that the illiterate thumb printed or made his mark on the letter or document...

One of the questions which the Supreme Court had to decide in Duodu V Adomako & Adomako (2012) SCGLR 198 bothered on the determination of whether illiterate persons appreciate documents executed by them. The Supreme Court in that case made reference to the celebrated case of Zambrama v Segbedzi (1991) 2 GLR 221, where the Court of Appeal held in head note (2) as follows:

The presence of an interpretation clause in a document was not conclusive of the fact, neither was it a sine qua non. It was still possible for an illiterate to lead evidence outside the document to show that despite the said interpretation clause, he was not made fully aware of the contents of the document to which he made his mark.

The Supreme Court in the Duodu case (supra) quoted with approval the pronouncement of the Court of Appeal in the Zambrama case (supra, holding 2) thus:

If a court, after assessing all the available evidence was satisfied, upon the preponderance of the evidence, that the document was read and interpreted to the illiterate person, then the burden of proof would have been discharged by the person relying on the document. That was because just as it was bad to hold an illiterate to a bargain he would otherwise not have entered into if he fully appreciated it, so also was it equally bad to permit a person to avoid a bargain properly and voluntarily entered into by him under the guise of illiteracy...

In their Lordships rightful opinion in the Duodu case (supra) at page 216:

The clear principle emanating from these cases is that, courts must not make a fetish of the presence or otherwise of a jurat on executed documents. To hold otherwise, without a single exception, is to open the floodgates to stark injustice. Admittedly, the presence of a jurat may be presumptive of the facts alleged in the document, including the jurat. But that presumption is rebuttable, it is not conclusive...

Concluding, the Supreme Court took the view that the Ordinance cannot, and must not be permitted to be used as a subterfuge or cloak by illiterates against innocent persons. Thus, an illiterate person who fully appreciates the contents of a document which he freely executed, but feigns ignorance, so as to escape legal liability, will not obtain relief.

The judicial precedents referred to above clearly support the findings of this court that looking at all the circumstances of the case and weighing the evidence on record on the balance of probabilities, the Defendant herein perfectly understood the contents of exhibit A (same as exhibit H), before he set his mark to it. In the absence of any convincing evidence to the contrary, the Defendant is bound by exhibit A which reads as follows:

PROMISSORY NOTE

This is to certify that i, the undersigned, Mr. Solomon Adjei resident at Obuasi Sam Jonah Estate and an employee of Anglo Gold Ashanti G.C.S. BADGE No. c. 7778, mobile no. 0540-577122 have collected the sum of FIFTY TWO THOUSAND FIVE HUNDRED GHANA CEDIS (GH¢52,500.00) from MR. VICTOR AGBESI who is also resident at Obuasi Wawase House No. WB/4 Mobile No. 0246-287938.

That the said amount was given to me as a friendly assistance without interest.

That I promise to pay back the above amount at the end of November, 2014, without fail.

That in default of payment of the said amount at the end of November, 2014 as stated above, my creditor, Mr. Victor Agbesi has the right to take any legal action at any law court of justice against me for the claim of the amount thereof.

Dated at Obuasi this 5th Day of November, 2014 after the contents had been read and interpreted in Twi language by B.S. Ackah and when they perfectly understand same they made their mark/thumbprint herein.

(SGD)                                                  (MARKED)

MR. VICTOR AGBESI                 MR. SOLOMON ADJEI

(CREDITOR)                                      (DEBTOR)

WITNESSES

(SGD)                                                      (SGD).

MR. AGBESI DERRICK                  MR. ISSAH YAKUBU

(FOR CREDITORR)                             (FOR DEBTOR).

It is to be noted from the evidence on record that even though exhibit A was made on 05/11/2014, the sum of GH¢52, 500.00 had been taken from the Plaintiff a couple of weeks earlier. This apart, the court concludes that the Defendant actually borrowed the sum of GH¢ 52,500.00 from the Plaintiff as Financial Assistance.

Whether not the Plaintiff granted a financial assistance and added an amount of GH¢12,500.00 by way of interest for one month?

Reading from exhibit A, there was no interest component to the financial assistance of GH¢52, 500.00 given to the Defendant by the Plaintiff. I have already found that the Defendant perfectly understood the transaction covered by exhibit A, which is binding on him. In this light, can the court make a contrary finding that the sum of GH¢12,500.00 was an interest component of the GH¢ 52,500.00 ?

In deciding this matter, the court cannot close its eyes to the nature of the transaction in issue. Such agreements which end up in disagreements are very common. The Learned writer, Brobbey JSC in his article on "Court Decisions Affecting Interest Rates in Ghana," Banking & Financial Law Journal of Ghana, Vol. 3 No. 1 Jan- June 2014, page 62, observed as follows:

It is not uncommon for local traders to be loaned some money which is described as interest-free when in fact there is interest factored into the transaction. A typical agreement takes this form: a lender lends money to the borrower for, say, ten thousand cedis. The written agreement stipulates that the amount lent is sixteen thousand cedis which is interest-free , but it is to be paid back within one year. When the borrower defaults in the payment, the lender sues for the refund of his money, he pleads that he lent only sixteen thousand cedis to the borrower without interest. The borrower on the other hand pleads that the actual amount he borrowed was ten thousand cedis but the lender charged interest of fifty percent and that increased the debt to sixteen thousand cedis. See Dua v Afriyie ( 1971) 1 GLR 260, CA.

His Lordship gave some guidelines in resolving such cases when it is difficult to tell who is telling the truth. These guidelines are:

Was the transaction a money lending one?

Did the lender have a license to lend money?

If the court takes the view that the transaction was a money lending one, was the rate of interest reasonable or unconscionable?

Can the court re-open the transaction if it was found unconscionable?

In the instant case, the Defendant actually pleaded in his paragraph six (6) of the defence , supra, that he took GH¢40,000.00 and that GH¢ 12, 500.00 was added as interest, bringing the entire amount to GH¢ 52,000.00, which the Plaintiff emphatically denied. PW1 told the court that he was present when the Plaintiff counted GH¢ 52,500.00 and gave the same to the Defendant, before exhibit A was prepared. Interestingly, PW1 signed exhibit A as the Defendant's witness. It is also on record that he led the Defendant to take the money from the plaintiff. Yet, he has now "crossed carpet" to the other side!

Be that as it may, the evidence on record will not support a finding that the Plaintiff is a money lender so as to give room to the court to re-open the transaction under consideration. This will lead to the next issue.

Whether or not the Defendant again took an amount of GH¢ 7,500.00 in addition to the GH¢52,500.00 as financial assistance and issued a cheque in respect of same for payment?

There is no doubt from the evidence on record that the Defendant sought, and was given a further financial assistance from the Plaintiff. On the one hand, the Defendant admitted that he gave a blank cheque to the plaintiff for encashment as a sign of good faith. He denied filling in the cheque . On the other hand, the Plaintiff says it was the defendant who filled out all the details on exhibit B. None of the parties requested for exhibit B to be sent for forensic analysis i.e. to a hand writing expect, to determine whether the writings have similar identifying characters as the writings of either party. So, the court must from its own impressions on exhibit based on the evidence on record.

In exhibit B, the Defendant appended his signature. This mandate appears on the front and back of the cheque. I have also compared the characters i.e. " CASH SEVEN THOUSAND FIVE HUNDRED GHANA CEDIS ONLY" to the endorsement at the back of exhibit A, namely: " E 125 SAM JONAH". I find that the writings referred to above have similar identifying characters, an indication that it was one person who authored all the said writings.

On the totality of the evidence, I find that the Defendant was given further financial assistance from the Plaintiff and that the amount re-payable to the Plaintiff is the GH¢ 7, 500.00 endorsed on exhibit B. The evidence as to whether portion of the said amount represents interest is not clear. Bearing in mind the fact that the Plaintiff has credibility issues as earlier found, the court cannot accept his oral evidence that a portion of the amount of money indicated in exhibit B consists of interest, without further proof. But, having issued exhibit B to satisfy a debt owed the Plaintiff, and in the absence of any evidence of fraud, duress or undue influence, the Defendant is estopped from denying that he owes the Plaintiff GH¢ 7,500.00 .

IS THE PLAINTIFF ENTITLED TO HIS CLAIMS AGAINST THE DEFENDANT?

I have already put on record that judgment on admission has been entered against the Defendant in the sum of GH¢40,000.00 together with interest at the prevailing bank rate from November, 2014, till date of final payment. The amount endorsed on the writ of summons is GH¢ 60,000.00. Accordingly, I will enter judgment in favour of the Plaintiff for the difference of GH¢20,000.00 together with interest from December, 2014, till date of final payment. For the avoidance of doubt, the Bank of Ghana 91 – Treasury Bills Rate is to be used as the prevailing Bank rate.

Looking at exhibit A, full payment ought to have been made by the end of November, 2014. Thus, when judgment on admissions was entered, the interest ought to have run from 1/12/2014, but the court inadvertently put the date at November. I find this to be an error apparent on the face of the record. Accordingly, I order that the interest on the GH¢ 40,000.00 is to run from 1/12/2014 till date of final payment. Counsel for the Plaintiff is to amend that on the entry of judgment accordingly.

I have taken all the circumstances of this case into consideration, especially, and I hereby ward cost of GH¢3,000.00 against the Defendant.

Counsel for the Plaintiff will notice that I did not make reference to his written submissions. The reason is that he filed it out of time and after I had finished writing my judgment. It is my hope that Counsel works within time lines set by the court in future so that his inputs can be taken into consideration.