BANK OF AFRICA vs BIG AIDOO CONSTRUCTION CO. & ANOTHER
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA- A.D 2019
BANK OF AFRICA - (Plaintiff)
BIG AIDOO CONSTRUCTION CO. AND ANOTHER - (Defendant)

DATE:  24 TH MAY, 2018
SUIT NO:  BFS/276/14
JUDGES:  GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
LAWYERS:  ANDREW APPAU OBENG FOR PLAINTIFF
JUDGMENT

In 2009, September 1st, the Plaintiff granted the 1st Defendant a discounting facility of GH¢52,000.00 to enable the 1st Defendant to discount on interim payment certificate No. 3-DFR which was valued GH¢475,876.72 so as to be able to continue some surface dressing of the Asikuma-Badum-Besease Feeder road. The parties agreed to an interest rate as follows:-

 

“Interest on the facility will be charged at Base Rate (currently at 29.75) plus 4.25% per annum collectible at the end of the period (subject to variation in line with market trends). A default interest rate of 1%. The parties further agreed that the facility was to be repaid in full on or before 21st February, 2010. The 1st and 2nd Defendants executed a joint and several guarantee in favour of the Plaintiff to be liable for the debts of the 1st Defendant. The board of the 1st Defendant Company passed a resolution to approve the facility.

 

Then on the 18th September, 2009, upon a second request by the 1st Defendant, the Plaintiff granted an IPC Discounting Enhancement facility of GH¢10,000.00 thereby bringing the total discounting facility to GH¢62,000.00. The inability of the 1st Defendant to settle its indebtedness has brought the parties to court with the Plaintiff claiming for an order compelling the Defendants jointly and severally to pay to the Plaintiff the sum of GH¢239,811.17 being the amount owed by the Defendant to the Plaintiff as at the 13th day of October, 2014. In addition, the Plaintiff has asked for interest on the said amount calculated at the contractual rate from 13th October, 2014 to date of final payment.

 

It is noted that on the 1st March, 2017, the parties were ordered to file their respective witness statements within 21 days with a further order that the Defendants were to be served with a copy of the order. Despite being served with the order, the Defendants failed to comply with the order of the court. On the 30th April, 2018 the court struck out the statement of defence filed by the Defendants in accordance with the rules of court asamended. The Plaintiff was accordingly ordered to prove its claim.

 

On the 15th May, 2018, the Plaintiff’s representative testified. As has been the case all these while, the Defendants failed to atte4nd court despite hearing notice being served on them.

The case of the Plaintiff is that it granted the 1st Defendant a discounting facility on the request of 1st

Defendant in the sum of GH¢52,000.00 on the 18th September, 2009. This was to enable the 1st Defendant continue works on the surface dressing of the Asikuma-Bedum-Besease feeder road. The Plaintiff tendered a copy of the facility letter as Exhibit ‘A’.

 

The terms and conditions of the said facility Agreement are contained in Exhibit ‘A’. It is the case of the Plaintiff that the Board of 1st Defendant approved the facility by a resolution which the Plaintiff tendered as Exhibit ‘B’. The 2nd Defendant, who is the Managing Director of 1st Defendant executed a joint and several guarantee with the 1st Defendant in favour of the Plaintiff to be liable for the debts of 1st Defendant. The Plaintiff further contended that at the request of the 1st Defendant, the Plaintiff granted to the 1st Defendant an IPC discount enhancing facility of GH¢10,000.00 on the 18th September, 2009, bringing the total discounting enhancing facility to GH¢62,000.00. It is the contention of the Plaintiff that the Defendants, contrary to the terms of the facility granted, failed to honour their repayment obligations. Plaintiff stated that they conducted checks at the Feeder Road Department and found that cheques meant for the repayment of the facility issued by the Feeder Roads Department were diverted by the Defendants. As a result of the inability of the Defendants to repay the facility, the indebtedness of the Defendants as at 13th October, 2014 stood at GH¢239,811.17. The Plaintiff tendered the 1st Defendants statement of accounts to show the debt owed by the 1st Defendant as at that date. Section 14 of the Evidence Act, 1975 (NRCD 323) provides:-

“Except as otherwise provided by law, unless it is shifted, 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.”

 

It is the Plaintiff who in its pleadings and writ of summons raises issues essential to the success of its case and therefore bears the burden to prove the assertions contained in these pleadings. As Ollenu JSC (as he then was) stated in the case ofmFAIBI v STATE HOTELS CORP [1968] GLR 471 at 473 that:

“Onus in law lies upon the party who would lose if no evidence is led in the case..... and where some evidence has been led, it lies upon the party who would lose if no further evidence was led.”

The Plaintiff in proof of its case tendered Exhibit ‘A’ which is the facility agreement.

The terms and conditions of the facility granted as found in Exhibit ‘A’ are as follows:

Period and Repayment of the Offer

The facility is to be repaid in full before or on the 21st February, 2010.

Pricing

 

5.1. Interest

5.1.1. Interest on the Facility will be charged at Base Rate (Currently at 29.75) plus 4.25% per annum collectible at the end of the period (subject to variation in line with market trends)

5.1.2. The Bank reserves the right to amend the interest and the method of calculating it at any time at the Bank’s discretion without notice to the Borrower.

5.1.3. Interest payable under this Offer Letter will:

(i) be calculated on the basis of a 365-day year irrespective of whether or not the year in question is a leap year.

(ii) be calculated on the daily balance owing under the Offer, notwithstanding that such balance may have been increased by the debiting of interest to such balance;

(iii) accrue from day to day;

(iv) be debited to the Borrower’s account held with the bank, monthly in arrears; and

(v) be compounded monthly.

 

5.2 Default Interest

Should the Borrower fail to meet on due date repayment as stipulated in clause 4 above and/or accrued interest or any other amount which is payable under the Facility which remain due but unpaid, a default interest rate will be charged at 1% per annum over the Bank’s Rate from time to time, from the date on which such sum fell due to the date on which it is actually paid, whether before or after judgment.

 

5.3. Penal Interest

In addition to the Default Interest above, the Bank shall charge a 6% flat penalty interest rate assessed over any amount that is due for payment but is unpaid per each month that any payment remained unpaid.

 

5.4. Other fees and Charges

Upon acceptance of this Facility,

Processing Fee of 1.5%

Commitment Fee of 1.5%

Calculated on the enhanced facility amount, will be debited to the Borrower’s account held with the Bank immediately after acceptance of this offer.

 

6. Security

6.1. The facility shall continue to be secured with Proceeds from IPC No. 2- DFR valued at GH¢475,876.72

6.2. Letter of Undertaking (LOU) from the Department of Feeder Roads (DFR) to the effect that all payments in relation to the project would be made in the joint names of the Borrower/Amalgamate4d Bank Limited and into Account No. 001-102242. The LOU must also confirm the Bank’s right to collect all cheque payments on the project directly from DFR and also allow for electronic transfer of due payments through the above mentioned account held with the Bank where necessary.

6.3. The security shall cover all banking facilities granted to the Borrower, whether direct or contingent and howsoever arising.

 

7. Conditions Precedent

The Bank will make the facility available to the Borrower subject to receipt of the following:

7.1. A signed copy of this Letter accepting the terms and conditions stipulated herein and on the attached general terms and conditions;

7.2. A supporting resolution by the Borrower’s Board of Directors authorizing the acceptance of the Offer.

 

7.3 Joint and Several Guarantee by the Directors of the Company.

 

7.4. Security as described in Clause 6.

 

8. Special Conditions

8.1. While the Offer remains available or any amount or commitment remains outstanding to the Bank, the Borrower will:

 

8.1.1. Provide the bank with such further information as the bank may require, from time to time;

 

8.1.2. Channel all proceeds from the Borrower’s operations through its account with the bank.

 

 9. Default

If the Borrower shall fail to make payment by due date of any amount due in terms of the facility that the bank has accorded the Borrower or may offer to the Borrower; breach any term, representation, warranty, undertaking or condition of this Offer Letter or any other facility the bank may grant to the Borrower; shall become bankrupt or Borrower’s assets be provisionally or finally sequestrated; be unable to pay its debts as they become due; enter into a scheme of arrangement with its creditors; act in any way or if any event occurs or series of events occur which, in the opinion of the bank, may have a material adverse effect on the Borrower’s business, financial condition or assets, or its ability to perform its obligations under the facility, or an attachment, execution or if other legal process is levied, enforced or issued against any assets of the Borrower or of any surety/guarantor for the Borrower’s indebtedness to the bank and is not discharged or stayed within 30 days of service thereof by the relevant officer of the court of such attachment, execution or other legal process; if at any time the amount outstanding under the facility exceeds the maximum aggregate limit for the facility or if any sureties/guarantors in respect of the Borrower’s indebtedness to the bank delivers a valid and effective notice of termination of liability under such suretyship/guarantee, then in any such event, the full amount of the facility and any other facility accorded to the Borrower by the bank, then outstanding, and all charges accrued thereon, together with additional interest as defined in this Offer Letter shall immediately become due and payable. In addition, the bank shall have the right to exercise all other remedies available to it in terms of the laws of Ghana.

 

The Plaintiff further tendered the resolution of the board of 1st Defendant authorising the 2nd Defendant to accept the terms and conditions of the transaction. I have examined Exhibit A’ and B’ and I have no doubt in my mind that the 1st Defendant obtained a discounting facility on the 18th September, 2009 in the total sum of GH¢61,000.00 from the Plaintiff. From Exhibit ‘C’, the debt of the 1st Defendant stood at GH¢239,811.17 as at 13th October, 2014. There is no contrary evidence before me which throws doubt on the evidence led by the Plaintiff. The Defendants, as stated earlier, failed to attend court despite being served with hearing notice, to cross-examine the Plaintiff’s representative on his evidence. The position of the law is that if a witness testifies and the opponent consciously or refuses to cross-examine him, the court may consider the evidence as admitted by the opponent; see the case of QUAGRAINE v ADAMS [1981] GLR 599. In TAKORADI FLOUR MILLS v SAMIR [2006] SCGLR 882, Ansah Jsc referred to the case of TUTU v GOGO (Civil Appeal No. 25/67, dated 28th April, 1969, unreported but digested in the 1969 current cases, 76, where Ollenu, JA (as he then was) stated thus:

 

“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”

 

The lack of cross-examination and the inability of the Defendants to tender evidence to the contrary notwithstanding, I find the evidence led by the Plaintiff to be credible and sufficient to establish the liability of the Defendants. There is no doubt in my mind that the Plaintiff has succeeded in discharging the burden of proof in this case. It is my opinion therefore that the Plaintiff should be entitled to its claim. Judgment is accordingly entered for the Plaintiff in its claim. The Plaintiff shall have its costs in the action assessed at GH¢20,000.00 against Defendants.