IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
BANK OF AFRICA -(Plaintiff)
AKUAFO ADAMFO MARKETING CO. LTD AND ANOTHER -(Defendant)
DATE: 28 TH JUNE, 2018
SUIT NO: CM/TBFS/0030/16
JUDGES: DOREEN G. BOAKYE-AGYEI (MRS.) J JUSTICE OF THE HIGH COURT
The Plaintiff, a banking institution, issued a Writ of Summons and Statement of Claim against the
Defendants on 5th April, 2016 seeking against them jointly and severally, the following reliefs:
1. Payment of the sum of GHC15,838,642.73 being the outstanding amount on the Facility granted to the 1st Defendant as at 19th November 2015;
2. Interest at a rate of 33.15% per annum on the principal amount from 19th November 2015 till the date of final payment; and
3. Legal costs incurred by the Plaintiff in instituting the action.
1st Defendant is a limited liability company incorporated under the laws of Ghana and a customer of the Plaintiff which is a company incorporated under the laws of Ghana and carrying on the business of banking.
2nd Defendant is a company incorporated under the Laws of Switzerland and a 100% shareholder of the 1st Defendant, according to the Pleadings. Following service of the Writ of Summons and Statement of Claim on them, Defendants Entered Appearance through their Lawyer on 15th April, 2016 and filed their Statement of Defence on 19th April, 2016. Defendants filed an Amended Statement of Defence on 23rd November, 2016 pursuant to leave granted by the Court to which the Plaintiff also filed a Reply to the Amended process on 5th December, 2016. Settlement failed at the Pre-trial Conference and the case was fixed for hearing.
The following issues were set down for trial:
Whether or not the Defendant owed the Plaintiff an amount of GHC15, 838,642.73 as at 19th November, 2015.
Whether or not the Plaintiff is entitled to the reliefs it claims.
Any other issue (s) arising from the pleadings.
The Burden of Persuasion in all civil cases is proof by a preponderance of the probabilities. This standard was affirmed by the Supreme Court in the case of Adwubeng v Domfeh (1996-97) SCGLR 660. The burden is defined at section 10 of the Evidence Act 1972, Act 323 as follows:
(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.
(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or nonexistence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt” Proof by a “Preponderance of the Probabilities” according to section 12(2) means: “.....that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”
The general principle of law is that it is the duty of a Plaintiff to prove his case that is he must prove what he alleges. See Bank of Africa Limited v. Ackon (1963) 1 GLR 176 and Ababio v. Akwasi III (1994-95) 1 GLR Part 2, 774. In other words, it is the party who raised in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the Defence when a sufficient prima facie case is made by the Plaintiff on a particular issue. Section 11 (1) of the Evidence Act defines the Burden of Producing Evidence as “...the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Subsection 2 thereof is to the effect that the burden of producing evidence is discharged when a party produces “...Sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”
Further in the case of In Re Ashalley Botwe Lands: Adjetey Agbosu & Ors v. Ebenezer Nikoi Kotey
Ors (2003-2004) 1 SCGLR 420 the Supreme Court whilst reiterating the undisputed position of the law that a litigant who is a Defendant in a civil case does not need to prove anything and that it is the duty of the Plaintiff who took the Defendant to Court to prove what he claims he is entitled to from the Defendant, also held that although the rule just applies generally, if the Court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. Accordingly, the Supreme Court held that if the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour.
His Lordship Justice Brobbey JSC explained the principle at pages 464 to 465 of the Report in part as “the hackneyed Common Law principle has always been that a Defendant in a civil case assumes no onus of proof, and indeed is said to be under no obligation to prove his defence. Serious inroads have however been created in this principle by two sections in NRCD 323. The first is Section 11(1) which states that:
“11(1) for the purposes of this Decreee, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue”. The second is section 14 which reads that: “Except as otherwise provided by law, unless and until it is specified a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”
These sections of the Evidence Act, 1975 clearly require a Defendant who wishes to win his case to lead evidence on issues he desires to be ruled in his favour. The effect of sections 11(1) and 14 and similar sections in the Evidence Act, 1975 may be described as follows: “A Litigant who is a Defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to Court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires that the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the Court will be left with no choice but to evaluate the entire case on the basis of evidence before the Court, which may turn out to be only the evidence of the Plaintiff. If the Court chooses to believe only the evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant. In the light of the statutory provisions, literally relying on the Common law principle that the Defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a Defendant.”
In Majolagbe vs Larbi (1959) GLR 190, proof in law was explained by the Court as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true. Here I may repeat what I stated in the case of Khoury & Anor vs Richter on this question of proof. That Judgment was delivered on the 8th December, 1958, and the passage in question is as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g by producing documents, description of things, reference to other facts, instances, or circumstances, and his averments is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers it true””.
The Supreme Court has further clarified these statutory provisions on the burden of proof and evidentiary burden. In the case of GIHOC Refrigeration & Household v. Jean Hanna Assi (2005-2006) SCGLR 458 the Supreme Court explained that the standard of proof by a preponderance of probabilities is based on a party’s ability to satisfy the judge of the “probable existence” of the relevant fact. The Court stated at page 485 of the report as follows: Since the enactment, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue....Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgment might be given in favour of a party on the preponderance of the probabilities...
The Courts have also held that he who alleges must prove his case on the strength of his own case. In Owusu v. Tabiri & Anor (1987-88) 1 GLR 287, it was held that: It was a trite principle of law that he who asserted must prove and must win his case on the strength of his own case. The law is that a person does not prove his case by simply mounting the witness box and repeating his pleadings. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 at page 242, the Court of Appeal quoted with approval the decision of Ollennu J.A. (as he then was) in Ghaspa Fisheries Co. v. Ghana Mirror Factory, High Court, Accra; digested in (1968) C.C. 42 where he stated that: A person does not prove a fact by merely going into the witness-box and repeating on oath what he avers in his pleadings, and by calling a witness to repeat the same on oath. At page 237 of the Zabrama v. Segbedzi case (supra), the court also cited the case of Majolage v. Larbi (1959) GLR 190 where once again Ollennu J. (as he then was), stated at page 192 thus: Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence.
Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. In the Zabrama v. Segbedzi case (supra) it was stated that a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.
The major issues raised by the pleadings and evidence before this Court can therefore be summed up as following:
Whether or not 1st Defendant is indebted to Plaintiff in the sum of GHC15,838,642.73 as at 19th November, 2015 together with interest and 2. Whether or not Plaintiff varied the repayment period of the facility and is
bound by a promise not to enforce its rights under the facility agreement till after the restructuring of 1st Defendant borrower.
This action is a Moneylender’s Action which requires compliance with the provisions of Order 59 of the High Court (Civil Procedure) Rules, 2004 as amended, particularly, Rule 3 which requires a Plaintiff in a Moneylender’s Action to particularize in the Statement of Claim the following among others:
i. the amount actually lent to the borrower;
ii. the rate per cent per annum of interest charged;
iii. the amount repaid;
iv. the amount due but unpaid;
v. the date upon which the unpaid sum became due; and
vi. the amount of interest accrued due and unpaid on the sum.
Under Section 14 of the Evidence Act, 1975 (N.R.C.D. 323), a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. Section 11(4) of the Evidence Act, 1975 (N.R.C.D. 323) also provides that: ... the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
It is the Plaintiff who alleged that the 1st Defendant is indebted to it in the sum of GHC15, 838,642.73. The Defendants disputed that 1st Defendant owes Plaintiff. The onus was therefore on the Plaintiff to produce sufficient evidence so that on the totality of the evidence, a reasonable mind would conclude that the existence of the debt of GHC15, 838,642.73 was more probable than its non-existence. See the case of Fosua and Adu-Poku v. Adu-Poku and Mensah  SCGLR 310. The Plaintiff produced the account statement of the 1st Defendant in its books showing their indebtedness of GHC15, 838,642.73 to the Plaintiff as at 19th November, 2015, See Exhibit L. Prima facie, this goes to establish Plaintiff’s claim of 1st Defendant’s indebtedness to it.
The burden of proof therefore shifted onto the Defendants to produce sufficient evidence to show that on the balance of the probabilities, it was indeed not indebted to Plaintiff. It is important to mention that the Credit Facility which is the subject matter of this Suit is that of an Overdraft facility initially in the sum of GHC5,000,000 in 2013 for the period 26th May, 2013 to 25th April, 2014 subsequently extended from 28th April 2014 to 20th May, 2014. Then on 2nd march, 2015 1st Defendant applied for an enhancement of the Overdraft Facility of GHC10, 000,000 to GHC15, 000,000 as per Exhibit A. The first page of Exhibit L showed negative balance of - 14,707,434.29 at the top and -15,838,642.73 at the bottom therefore showing that 1st Defendant utilized or drew down on the facility. Being an overdraft facility, Defendants needed to show that it cleaned up this utilization and its account balance returned to a positive figure to be able to proof that it was indeed not indebted to the Plaintiff lender. There is no evidence of this before this Court. Exhibit M tendered then showed that the amount owed had increased to Ghc19, 079,543.36 as at 26th November, 2016.
The burden of establishing the affirmative of these issues rested with the Plaintiff. The fact of the grant of the facility and the terms thereof are not in contention. Plaintiff tendered Exhibit B, Offer Letter dated 9th April, 2015 for an Overdraft facility of GHC15, 000,000 which the 1st Defendant duly accepted and executed by initialing each page and signing on 20th April, 2015. Exhibit C is a copy of a Board Resolution authorizing the Managing Director of 1st Defendant to accept the offer dated 20th April, 2015 and Exhibit D is also a copy of Corporate Guarantee dated 27th April, 2015 preceded by Exhibit E a Board Resolution authorizing same dated20th April, 2015. Exhibit F is a copy of the Assignment of Receivables from Ghana Cocoa Board (Cocobod) executed by 1st Defendant dated 28th April, 2015. The facility according to the evidence was for a period of 12 months at an interest rate of 27.76% per annum and a penal interest rate of 6% per annum, same set up for utilization on 30th April, 2015.
Plaintiff avers and testifies that 1st Defendant was required under the terms of the facility to service same by ensuring a regular inflow into its accounts for purposes of servicing the outstanding but it failed to do so. That 1st Defendant having received seed funds from Cocobod for the 2014/2015 cocoa season failed to supply cocoa to it resulting in 1st Defendant’s fund guarantee being called in by Cocobod and they further suspending its operating license. The evidence further was that the facility expired and was thrown into excess on 31st August, 2015 causing the penal interest rate of 6% to kick in and the new interest rate applicable therefore being 33.15%. As at 21st October, 2015 per Plaintiff’s account the indebtedness stood at GHC15, 684,566.71 with interest accruing and per letter of 21st October, 2015 a Demand for repayment on 1st Defendant and call-in of corporate guarantee on 2nd Defendant was issued. Plaintiff testifies that 2nd Defendant per its letter of 30th October, 2015 asked it to hold off enforcement for a short period and by a subsequent letter of 9th November, 2015 invited them for a meeting with 2nd Defendant’s advisors to present a proposal for restructuring their indebtedness. Plaintiff says the said meeting was not successful with no conclusions reached and no amount paid to date and that is why per their Writ, Defendants are indebted to them to the tune of GHC15, 838,642.73 as at 19th November, 2015.
The Position of the law is that when a party has given evidence of material facts and was not cross-examined upon same, he need not call further evidence on that fact as the evidence is deemed to have been admitted. This rule is stated in holding 3 of the Supreme Court case of Ghana Ports & Harbours Authority & Captain Zeim v Nova Complex Limited (2007-2008) SCGLR 806. It is a well-known principle of law that evidence which is unchallenged in cross- examination is deemed to be admitted by the other side. The Supreme Court in the case of Danielli Construction Ltd v. Mabey & Johnson Ltd (2007-2008) SCGLR 60 applied this principle and found that the Plaintiff’s failure to cross-examine the Defendant’s witness meant that it admitted the import of the evidence. The Court stated specifically at page 65 of the report as follows: “The Plaintiff company did not cross-examine the witness of the defendant company in the witness box when he gave that evidence; the plaintiff company did not also tender any evidence to challenge the veracity of the evidence in exhibit 2 and the inference was that it admitted the import of the evidence”.
In the case Evelyn Frimpomaa Owusu v. James Owusu (H1/144/2010) (unreported, Dated 17/03/2011), the Court of Appeal also applied the principle and stated that cross-examination affords counsel the opportunity to indicate how much of a testimony he accepts. If he keeps quiet on the testimony he would be deemed to have accepted it. The court stated as follows: “Cross-examination, among other things, affords the party doing the cross-examination the opportunity to put his case across. He does this by putting to his opponent or his opponent’s witness so much of his case as relates to that witness, or by putting to the witness that aspect of his own case in which that witness has any share or interest. Where, for example the testimony of that issue is, counsel for the defendant is obliged, by his cross-examination, to indicate how much of the testimony he accepts, and how much of it he disputes or rejects; and he will also put forward what the defendant’s position on the issue is going to be. If, in a situation like this, counsel for the defendant keeps quiet about the plaintiff’s testimony or fails to ask questions about it, he will be taken to accept the plaintiff’s statement in its entirety”.
In National Investment Bank Ltd. V. Messrs Agyakot Co. Ltd & 2 Ors (H1/136/2006) (Unreported, Dated 01/11/2007) the Court of Appeal, also relying on the same principle, stated as follows: “Where a witness had given a material evidence and that evidence was not challenged on cross-examination, the court might invariably take the failure to challenge as admission by the opponent of the truth of the matter stated”. In the earlier case of Bediako & Ors. V. The State (1963) 1 GLR 48 the Supreme Court had held that: “Where on a crucial part of the case, the prosecution intend to ask the court to disbelieve the evidence of a witness, that witness should be challenged in the witness-box, or it should be made plain while the witness is in the box that his evidence is not accepted”. And in Aboaku v. Tetteh & Anor (1962) 2 GLR 165, the Supreme Court stated that it was: “Of the opinion that upon failure of the defendants to cross-examine the plaintiff as to the quantum of his claim for repairs and the loss of earnings coupled with their failure to lead evidence to rebut the probability, the plaintiff was entitled to succeed in his claim”. Defendants had their day in Court and their finest hour to give the Court a compelling more probable than not version or even an equally probable version for the Court to prefer one version over another. Defendants in their Statement of Defense of 19th April, 2016 essentially say that they had some challenges which were relayed to Plaintiff with frank discussions entered into between them of options and a restructuring to enable them overcome their difficulties.
That Plaintiff agreed unconditionally not to insist on its legal rights and agreed that the facility be extended until after completion of the restructuring which promise Defendants acted upon making Plaintiff bound by its subsequent oral promise. Then per the Amended Statement of Defense dated 23rd November, 2016 pursuant to leave granted in paragraph 14, Defendants introduced a startling piece of information that regardless of Plaintiff being so bound by the oral promise and it being inequitable should they seek to have their legal rights enforced, they being estopped from insisting on the strict legal right to repayment, they did not owe on the Facility granted 1st Defendant by Plaintiff and guaranteed by 2nd Defendant as they had fully paid the debts. That they came to this knowledge and hence their position after conducting a financial reconciliation showing that they had fully satisfied their financial obligations to Plaintiff. Plaintiff in their Reply to the Amended process denied this and put Defendants to strict proof stating that as at 29th November, 2016 Defendants debt stood at GHC19,079,543.36.
Defendants’ Witness testified that he was the Financial Controller for 1st Defendant and represented
2nd Defendant as well as they were a group of companies. That 1st Defendant being a regular customer of Plaintiff had always honoured its obligations towards it and had as such a cordial relationship with them. He said in September 201, they approached Plaintiff for a facility of GHC10, 000,000 which was granted subject to terms one of it being a requirement or condition precedent that 2nd Defendant execute a guarantee to be liable in case of default. That an additional facility of GHC5, 00,000 was requested for on 2nd March, 2015 and granted on 9th April, 2015 with the with guarantees executed as well. According to his testimony soon after the facility was disbursed, 1st Defendant together with other members of their group experienced some financial challenges due to the global economic downturn which resulted in their inability to fulfill some financial obligations.
The Witness then testified about the information to Plaintiff, the frank and open discussions, the various options with restructuring as the choice and securing of the oral promise from Plaintiff not to enforce their legal rights to demand immediate repayment until the restructuring process was complete which they relied. That it was the promise which caused them to embark on the said restructuring at great cost to them and which they are at an advanced stage known to Plaintiff. That Plaintiff is bound by the said promise and estopped from unilaterally varying the oral promise which has amended the terms of the original agreement. That the said oral promise induced them to embark on the restructuring and it would be inequitable for Plaintiff to use the Court process to renege on the said promise having regard to the course of dealing between them. That further because of the said promise and their embarking on the restructure process, the expiration time for the facility was not yet due. That after commencing the present action, their former Accountant by name Antoine Assad conducted a reconciliation of the accounts and discovered that they had in fact settled all sums due Plaintiff under the facility and were consequently not owing the Plaintiff, who was therefore not entitled to the claims.
Not a single documentary evidence was proffered in support of this complete turnabout from the promise and expiration not due to totally not owing at all. At least for the promise Defendants claim it was oral but for the payment of the sums due there had to be at least a single document like a bank pay-in-slip or receipt. Defendants in the candid opinion of this Court have not demonstrated that they have paid their debt owed to the Plaintiff as they alleged. What Defendants’ witness did was simply to mount the witness box and repeat Defendants’ averments in their Amended Statement of Defence. As amply stated by the authorities cited above, proving a person’s case is not simply a matter of repeating one’s claims under oath. Credible and admissible evidence must be led in support of that which the Defendants failed to do.
Having applied for the Facility and agreed to its terms, the 1st Defendant is required to fulfill its obligation under the facility and the 2nd Defendant having guaranteed and undertaken to make payment if the 1st Defendant fails in making repayment, it is liable to make payment of the outstanding amount. During cross-examination of Plaintiff’s witness by Counsel for Defendants on page 7 of the record of proceedings, in answer to a question, the witness said the facility was the only one that had been extended to 1st Defendant and at page 10 after the witness answered that he was not a party to the meeting that took place Counsel suggested to him that several meetings took place with Minutes taken which were in the sole custody of Plaintiff but the witness reiterated that he was not a party to the said meeting(s). At Discovery stage, Counsel did not seek to have these Minutes brought out by way of Notice to Produce or Interrogatories served to elicit this response.
When it came to the turn of Defendants witness, it became clear that his evidence was based on his briefing from his predecessor Antione Assad’s files he took over to work on. He had said on page 18 of the record of proceedings that the facility was a combination of a loan and overdraft and knew only when the enhanced facility was granted according to him in April 2015 in response to questions asked. He on page 21 of the record of proceedings in answer to questions said as follows;
Q. And when the facility (matured) became due the Defendants were informed in October 2015, is that not so A. My Lord, as per the Offer Letter from the bank which is dated April, 2015 Exhibit B, the Facility should mature after 12 months so the facility did not mature before that time in October before the Demand Notice Exhibit G Q. So you confirm the Defendants were notified in October, 2015 that the facility had become due, is that not so A. Yes My Lord, and this Demand Notice was served after a letter was served to the Bank informing the Bank about the situation and planning for the way forward. It is mentioned in Exhibit G, their Demand Notice
He then said that per the information he had from the predecessor upon the handing over, a reconciliation had been done and the amount settled but he agreed he had not provided any evidentiary information on this to the Court. He said that per Exhibit K which was their letter calling for a meeting between Plaintiff Bank and themselves to explain the situation and the way forward, evening though he was not part of the meeting, per the information given him, series of meetings were held with the oral promise or undertaking referred to reached. He agreed that the relationship between the parties was that of a business banking one and Plaintiff was not a part of the Defendants group of Companies. This is not viewed in a favourable light by the authorities to wit, Majolagbe v Larbi, supra, Adjetey Agbosu, supra and Bank of Africa vs Ackon, supra.
If a Defendant desires a determination to be made in his favour, he has a duty to help his cause or case by placing before the Court such facts or evidence that induces the determination to be made in his favour. Defendants did not make any serious efforts to assist the Court to find in their favour and I am compelled to find that the Defendants are in breach of their repayment obligations to the Plaintiff and that the sum claimed by Plaintiff is not over and above the facility and that Plaintiff is entitled to its claims. From the evidence before this Court, the grant of the facilities and the terms therefrom were documentary. It is the case of Plaintiff that it did not vary the terms of the facility granted to Defendants. Indeed from the record, I find that nothing at all has been exhibited by Defendants to affirm the allegation that Plaintiff took any action that amounted to the variation of the terms of the facility granted or an agreement to refrain from insisting on the repayment of the facility to 1st Defendant until a completion of a restructuring project. I also do not find that Defendants were able to demonstrate that they had since paid off the facility upon their reconciliation.
The position of the law is that where an agreement is wholly reduced into writing, extrinsic evidence will not be admitted to add to, vary or contradict the terms of the written agreement. In Donkor v Maye Kom Mehwe Onyame Association (2007- 2008) SCGLR 179 The Supreme Court held per its holding 2 that; “it is well settled that a written document which is properly authenticated cannot be varied or contradicted by oral evidence. The rule is codified by section 177(1) of the Evidence Decree, 1975 (NRCD 323). None of the conditions for varying or contradicting a written document as stated in section 177 (1) of NRCD 323 are applicable to the instant case.” See also the cases of L. Estrange vs F. Gracoub (1934) 2 KB 394 and Inusah vs DHL World Express (1992) 1 GLR 267. Section 177(1) of the Evidence Act, 1975 (NRCD 323) has provisions on Extrinsic evidence affecting the contents of a writing thus; Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to those terms may not be contradicted by evidence of a prior declaration of intention, of a prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented...” It is trite that parties are bound by the terms of the written agreements/contracts they enter into. This principle is embodied in statute where it is stated in section 25 of NRCD 323 as follows:
1. Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest.
The Supreme Court held in African Distributors Co. Ltd v. Customs, Excise & Preventive Service (2011) 2 SCGLR 963 as follows: “....In our view, since there was no dispute bearing on the said agreement
which was in writing, the learned trial judge was right in expressing himself in the manner which he did and we think that the onslaught on his delivery is wholly devoid of any substance whatsoever, since the said agreement raised issues which are in their nature conclusive presumptions as provided for in sections 24, 25, and 26 of the Evidence Decree, 1975 (NRCD 323.)”
The principle is further affirmed by the learned author Christine Dowuona- Hammond in her book “The Law of Contract in Ghana” at page 129 thus: “When the parties have formally recorded the whole of their agreement in writing, the written document prima facie, is taken to be the whole contract. The terms of such a written contract are therefore said to be limited to the contents of the written documents and nothing more”. The Defendants touted restructuring was not in respect of the terms of repayment of the facility itself. The “restructuring” was in respect of the “operations of the Defendants”. It sounds convoluted and a tad absurd to expect Plaintiff to have promised not to insist on its right to repayment of the facility for Defendants to restructure their operations and not reduce same to writing with time lines. It sounds even more absurd for such a fantastic oral promise made to Defendants for Defendants not to ensure that they do not only have an oral promise but a documented one to cover all bases. Plaintiff vehemently denied any such oral promise and Defendants did not offer any form of corroboration of this alleged oral promise by the Plaintiff with for example names, dates, place of meetings and which official(s) were involved in the oral activity because both witnesses said they were not at the said meeting(s).
A proper inference therefore would be that there was no such oral promise. An oral agreement, assuming there was one, cannot amend a written contract in any event. The parties also expressly provided that the Facility Agreement, constituted the whole agreement between the parties and no variation could be made to it unless it was in writing and signed by both parties. However there is no written amendment signed by both parties for a contention to be made that the terms have been varied. It is provided on page 7 of Exhibit B as follows:
Whole Agreement, Variation of Terms, No indulgence “The agreement created upon acceptance of the Offer Letter by the Borrower shall constitute the whole agreement between the Bank and the Borrower relating to the subject matter of the Offer Letter. No additional to, variation or amendment or consensual cancellation of any of the terms contained in the Offer Letter shall be of any force or effect unless it is recorded in writing and is signed on behalf of the Bank by the one of its authorized officials and accepted by the Borrower”.
Plaintiff has proved its case beyond the standard required in a civil trial, having tendered relevant exhibits before this Court showing Defendants indebtedness to Plaintiff which remained unchallenged by the Defendants. Defendants have not demonstrated that they have settled their indebtedness to the Plaintiff and in the light of the overwhelming evidence put before the Court, there is no other conclusion than for the Court to find in favour of Plaintiff herein. On the issue of interest, the authorities and legal principles are that the parties are bound by their contractual interest rate. See the case of Merchant Bank (Ghana) Ltd v. Ghana Primewood Products Ltd. [1989-90] SCGLR 551-571, where the Supreme Court, faced with the question as to whether the bank was entitled to enforce the rates of interest and other charges contracted between the parties, held among others that: “it was only reasonable to assume that the parties intended the rates already stated in the prior agreements to be the only applicable rates”. The fact that the terms were turned into a consent judgment did not affect the proper interpretation to be attached to "accruing interest" under paragraph (f) of the terms of settlement: interest would accrue at the contractual rates so long as the moneys remained unpaid.
The Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C. l. 52) also provides under Rule I on Order for Payment of Interest as following: If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated
(a) at the bank rate prevailing at the time the order is made, and
(b ). at simple interest; but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner.
The Defendants having entered into binding agreements with the Plaintiff to pay interest on the Facility granted the 1st Defendant are liable to pay interest to it. The Defendants having used the Plaintiff’s money without making the necessary repayments are liable to the Plaintiff for interest and other charges for the failure to make the required payments. Interest is usually charged on debts in general and specifically on judgment debts to serve as a way of compensating the person who has been deprived of the use of his money. Explaining the rationale behind awarding interest on a judgment debt, the court stated in Heloo v. Tettey (1992) 2 GLR 112 that interest is awarded because if the judgment debtor had paid the money at the appropriate commercial time, the creditor would have the use of it. Accordingly interest is really meant as compensation for what the plaintiff had lost from the due date. This principle had been applied in the case of Agyei v. Amegbe (1989-90) 1 GLR 351, where the court held that interest is paid for a person’s use of the payee’s money. The court stated specifically at page 352 of the report as follows: “Whenever interest is to be charged and paid in respect of money, the charge is based on the supposition that the person to pay the interest has had the use of the payee’s money. If the money is no longer with the person to be charged that interest, the basis for the interest will cease to exist. ...Interest itself is regarded as money earned on money. This is why it is related to the specific amount in the possession of the person to pay the interest”.
In Ghana Commercial Bank v. Odom (1975) 2 GLR 54 the Court the Appeal held with regard to interest that the general rule was that interest was recoverable as a debt in cases:
Where it was payable under a contract either express or implied from the usage of the trade ;
or Where statute had fixed the rate at which it was payable.
The Supreme Court in NTHC v. Antwi (2009) SCGLR 117 held that even where a party fails to ask for interest, the court has an inherent jurisdiction to grant interest as a consequential order.
In the case of Dunlop Pneumatic Tyre Co. Ltd v. New Garage & Motor Co. Ltd (1914-15) All ER 739, the court held on page 747 as follows: “Where the damage which may arise out of a breach of contract is in its nature uncertain, the law permits the parties to agree beforehand the amount to be paid on such breach. Whether the parties have so agreed or whether the sum agreed to be paid on the breach is really a penalty must depend on the circumstances of each case”. The court found that the parties having agreed on the amount to be paid by the defendant on its breach of the agreement did not contain anything unconscionable or unreasonable and that the Defendant was liable to pay the amount contained in the agreement. The Defendants in cross-examining the Plaintiff’s Representative did not assert that they do not owe the Plaintiff and that they had settled their indebtedness. They did not also challenge the veracity of Exhibit L and Exhibit M and did not contend that they were wrong or inaccurate. The reasonable deduction from the Defendants’ cross-examination and refusal to tender any document to support their contention is that the Defendants do not contest the evidence of the Plaintiff’s Representative and the Plaintiff’s case generally. In other words, the Defendants admit that they are liable for the sum of GHC19, 079,543.36 shown to due from them as at 26th November, 2016.
In the case of Odametey v. Clocuh & Anor (1989-90)1 GLR 14 the Supreme Court established that although a Plaintiff must discharge the burden of proof and is not permitted to rely on the weaknesses in the defendant’s case to win, a Plaintiff who has made a case is entitled to rely on weaknesses in the Defendant’s evidence to strengthen his case. Taylor JSC said at page 28 of the report as follows: “If there was ever a doubt about the true principle, although I am firmly of the view that there has never been any doubt, then N.R.C.D. 323 has now definitely cleared all possible doubts. The position is this: if the Plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief...If, however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case”.
From the above, having reviewed the law and authorities as well as the respective cases of the parties, the Court finds that the Plaintiff has proved its case against the Defendants on a balance of probability, 2nd Defendant as well being a Guarantor of 1st Defendant. The law is clear on what a guarantee is. Guarantee has been defined in Halsbury’s Laws of England, 4th Edn Volume 20 paragraph 101 as: “... an accessory contract by which the promisor undertakes to be answerable to the promisee for the debt, default or miscarriage of another person, whose primary liability to the promisee must exist or be contemplated”. Paragraph 101 continues as follows: “As in the case of any other contract, its validity depends upon the mutual assent of the parties to it, their capacity to contract, and consideration, actual or implied. An additional statutory requirement is that the contract must either be in writing or be evidenced by a written note or memorandum signed by or on behalf of the party to be charged...”.
Guarantee has also been defined in the Osborn’s Concise Law Dictionary, 8th Edn as “a secondary agreement in which one person (the guarantor) will become liable for the debt of the principle debtor if the principal debtor defaults.”
In Rights and Duties of Bank Customers, by Dr. Kwaku Addeah, a ‘contract of guarantee’ is defined as a contract between a third party (called the guarantor) and the lender (i.e the bank) whereby the guarantor undertakes to pay the debt of a borrower where the borrower fails to repay.
In Ghana, the only requirement for a guarantee to be valid is that it is put in writing. Section 14 subsection (1) of the Contracts Act, 1960 (Act 25) provides as follows: “Any agreement made before or after the commencement of this Act whereby a person (hereinafter in this Part Called “the guarantor”) guarantees the due payment of a debt or the due performance of any other obligation by a third party shall be void unless it is in writing and is signed by the guarantor or his agent, or is entered into in a form recognized by customary law”.
The Courts have held that a guarantor is liable to repay a loan it has guaranteed upon the failure of the borrower to make payment. In NTHC Limited v. East Dadekotopon Development Trust & 3 Ors. (21/10/2010) Suit No. H1/216/06, unreported, the Court of Appeal held that the 2nd to 4th Defendants undertook to repay a loan facility of GHC1.7 billion to the Plaintiff in the event the 1st Defendant was unable to repay NTHC the principal amount and interest accruing on the Loan Facility. The Court therefore upheld the appeal and found that they were liable to make payment of the loan on the failure of the 1st defendant to repay the loan.
In the end, judgment is entered for the Plaintiff against the Defendants jointly and severally for the payment of the sum of GHC15, 838,642.73 being the outstanding amount on the Facility granted to the 1st Defendant as at 19th November 2015; Interest at a rate of 33.15% per annum on the principal amount from 19th November 2015 till the date of judgment, thereafter the interest rate as per C. I. 52 is applicable till date of final payment; and costs of Ghc100, 000.00 for Plaintiff.