IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
BANK OF AFRICA - (Plaintiff)
FESTUS ASARE YEBOAH - (Defendant)
DATE: 19 TH JUNE, 2018
SUIT NO: BFS 47/2017
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: MICHAEL KWABENA ATTA AGYEI FOR THE PLAINTIFF
By a writ of summons, plaintiff claim against the defendant the following reliefs:
a. A declaration that the Defendant’s failure, neglect and or refusal to honour the repayment terms on the facility granted him constitutes a breach of the financial facility agreement\contract between the Defendant and Plaintiff.
b. An order for the recovery of the outstanding sum of Seventy-Three thousand eight hundred and eighty onecedis and sixty two pesewas (GHC 73,881.62) together with the various agreed interest(s) and penalties to be assessed on any outstanding sum unpaid per each month of default till date of final payment.
c. Further interest and penal charges, if any, as agreed by the parties from the date of default till the date of final payment.
d. General damages for breach of contract.
e. Cost (including legal fees).
f. Any other reliefs deemed appropriate by the Honourable Court.
On 14th June, 2017 the court entered interlocutory judgment in favour of the Plaintiff for recovery of the principal sum of GHC73, 881.62. The suit was, however, adjourned for assessment of damages and the interests on the principal sum. The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:
‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded.
Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.’’
The Plaintiff’s representative led evidence of specific damages in support of the general damages sought. He led evidence to show the expenditure incurred in the prosecution of this case. He tendered exhibit E, the service invoice of the legal fees charged by plaintiff’s solicitors and exhibit F series, receipts evidencing court charges paid in the prosecution of this case. The sum total of the court charges amounted to GHC2, 910.00 and the legal service feewas GHC9, 388.10. The Plaintiff representative also tendered in evidence the overdraft facility agreement which was marked Exhibit A. This became necessary as both the writ of summons and statement of claim failed to disclose the various interests payable under the agreement. From Exhibit A, the loan was offered at an interest rate of 32.15% per annum subject to variations in line with market trends and a penal interest of 6% per annum. The courts generally respect the agreements voluntarily entered into by men of full age and understanding and is always willing to enforce these agreements provided they are compatible with public policy. In Oppong vs. Anarfi (2011) SCGLR 556 the Supreme Court recognized this basic principle when it held:
“The law was settled that a party of full age and understanding would normally be bound by his signature whether he read and understood it or not, particularly in the absence of the requisite evidence that the other party had misled him. Therefore where parties had embodied the terms of their contract in a written document, extrinsic evidence or oral evidence would be inadmissible to add to, vary, subtract from or contradict the terms of the written instrument. Thus mere negligence in not reading a document before signing could not amount to the defence of non-est factum.’’
While the court readily enforces agreed interest rates, it takes ambivalent approach when it comes to penal interests or penalty clauses. In Bank of Africa v Samuel Donkor Dickens, Suit No. CC 40/2017 (judgment delivered on 27/07/2018), I held that penalty clauses are only enforceable if the amount stipulated is a genuine pre-estimate of the loss suffered as a result of the breach in liquidated damages claims. I relied on the Ghanaian case of Adjei v Oteng alias Ama [1997-98] 1 GLR 725, Holding 1 which cited with approval the English case of Dunlop Pneumatic Tyre Co. Ltd v New Garage & Motor Co. Ltd  AC 79 in coming to the aforesaid conclusion. In the instant case, the penal interest of 6% per annum is conscionable, as in my considered opinion it represents the genuine pre-estimate of the loss suffered by the plaintiff resulting from the breach and proportionate to the legitimate interest of the plaintiff. The penal interest could therefore be enforced.
The result is that final judgment is entered in favour of the plaintiff in the principal sum of GHC 73,881.62 plus 32.15% interest per annum from 31/01/2017 till date of final payment. I also award penal interest of 6% per annum on the sum of GHC73, 881.62 from 31/01/2017 to the date of final payment. Damages of GHC5, 000.00 and costs of GHC2, 000.00 are also awarded against the defendant and in favour of the plaintiff.