IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2018
FIDELITY BANK GHANA LIMITED- (Plaintiff)
ANITA ASARE & ORS.11 - (Defendant)
DATE: 28 TH MARCH, 2018
SUIT NO: BFS/69/16
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
JANET OWUSU FOR KWAME OWUSU SEKYERE FOR
PLAINTIFF E. N. POKU FOR DEFENDANTS
In this action, the Plaintiff bank seeks the following reliefs against the Defendants as principal debtor and guarantors respectively:
1. An order for the recovery of the sum of One hundred and Fifty Three Thousand Nine Hundred and Thirty Six Ghana Cedis (GHC 153,936.73) being the total indebtedness of the 1st defendant from the loan facility granted by the Plaintiff Bank.
2. Interest on the said sum at the prevailing bank rate from 2nd day of March, 2016 till date of final payment.
i. An order for the judicial sale of Plot Number 32 Block L, Nhyiaeso, Kumasi.
3. Cost including Solicitor’s fee.
THE PLAINTIFF'S CASE.
The Plaintiff’s case is simple and straightforward, on 12th June, 2014, a loan of GHC 150,000.00 was extended to the 1st Defendant upon her request, for a period of 24 months at an interest rate of 35% per annum. The facility was guaranteed by the 2nd and 3rd Defendants. The 1st Defendant also secured the loan with her property numbered plot 32 Block L, Nhyiaeso, Kumasi. Procredit Savings and Loans Company which granted the loan has been taken over by the Plaintiff herein. It is the Plaintiff’s case that the Defendant has defaulted in repayment of the loan to the knowledge of the 2nd and 3rd Defendants and as at 2nd March, 2016, her total indebtedness stood at GHC 153,936.73.
THE DEFENDANTS CASE.
The 1st Defendant admitted taking the loan in issue and alleged that she took it to buy goods for her shop at Kejetia Market, Kumasi, as agreed by the Plaintiff. The Defendants denied liability to the Plaintiff’s case on these grounds: (i) the 1st Defendant’s shop caught fire which destroyed all goods in it: (ii) the performance of the purported contract was frustrated and thereby discharging the Defendant from further performance; (iii) The interest charged was unconscionable ; (iv) The purported contract was not made under the seal of the Plaintiff Company and therefore unenforceable; (v) the 2nd and 3rd Defendants did not sign the document purporting to be security for the alleged loan; and (vi) the Plaintiff misrepresented to the 2nd and 3rd Defendants that the document they signed was a guarantee for the Plaintiff to advance money to the 1st Defendant. These allegations were denied by the Plaintiff in its Reply.
ISSUES FOR TRIAL.
Following a failed attempt at pre-trial settlement, six issues were set down for trial, namely:
Whether the interest charged by the Plaintiff is unconscionable?
Whether the contract between the Defendant and Pro-Credit Savings and Loans, now Fidelity Bank, is enforceable?
Whether 2nd Defendant executed the mortgage deed in respect of Plot 32 Block L, Nhyiaeso – Kumasi?
Whether the 1st Defendant is indebted to the Plaintiff to the tune of GHC 153,936.73?
Whether the 1st Defendant was discharged from performance of the contract?
Whether or not the Plaintiff is entitled to its claim.
EVIDENCE AT THE TRIAL.
At the trial, a loan recovery officer of the Plaintiff testified on its behalf. He told the Court that on 12th
June, 2014, the 1st Defendant applied for a loan of GHC 150,000.00 at an interest rate of 35% per annum payable in 24 months from Procredit Savings and Loans Company Limited to be used as capital to purchase stock of goods. According to him, the facility was secured by the 1st Defendant, and guaranteed by the 2nd and 3rd Defendants. He tendered a copy of the loan agreement as exhibit ‘A’. In proof of the mortgage executed by the 1st Defendant, the Plaintiff’s representative put in evidence a copy of the said mortgage deed as exhibit ‘B’; a power of attorney given by siblings of the 1st Defendant to use their interest in the property as security for the loan, exhibit ‘D’; and a letter from the Lands Commission in respect of the processing of the “consent to mortgage” as exhibit ‘E’. He also tendered the deeds of guarantee executed by the 2nd and 3rd Defendants as exhibits C and C1. The Plaintiff testified that the agreed interest rate is not unconscionable, and that the 1st Defendant never protested against it at the time of signing the agreement. With regards to the deeds of guarantee executed by the 2nd and 3rd Defendants, the Plaintiff’s position is that these Defendants were not in any way misled into signing the deeds of guarantee because they were aware of what they were signing. Concluding, the Plaintiff’s representative said the Defendants are aware of the fact that after the grant of the facility, the Plaintiff herein took over the assets and liabilities of Procredit Savings and Loans, and notwithstanding the demand notices issued by the Plaintiff, the Defendants have failed to settle their joint and several liability in the sum of GHC 153,936.73.
The 1st Defendant testified and called one witness. In her evidence, the 1st Defendant admitted taking the loan of GHC 150,000.00 to expand her business. She attributed her inability to keep up with repayments to the total destruction of all items in her two shops and a wholesale at the central market when the said market got burnt. In support of this claim, she tendered a fire report as exhibit 1. According to the 1st Defendant, she requested for more money from the Plaintiff to restock her shops but the Defendant who initially promised to grant her request, failed to advance more money to her. Again, the 1st Defendant said her request for a bank statement from the Plaintiff did not yield any results, and when her lawyer wrote to the Plaintiff to complain about the exorbitant interest rate, the Plaintiff did not respond to the letter. She tendered copies of the said letters as exhibits 2, 3 and 4.
Continuing, the 1st Defendant said her siblings who live in Germany did not execute the Power of Attorney and that the purported loan agreement, guarantee contract and mortgage deed documents were wrongly executed and also sin against the laws regulating execution of documents by illiterate and deaf persons. Her reason for this evidence is that Yaa Adwubi, now deceased, who was one of the siblings who allegedly executed the power of attorney as joint owners was deaf and dumb in her life time.
ISSUE OF THE ENFORCEABILITY OF THE CONTRACT BETWEEN THE 1ST DEFENDANT AND PRO-CREDIT SAVINGS &LOANS, NOW FIDELITY BANK.
The Defendant’s stance that the contract is not enforceable is based on her evidence that the contents of the documents she was made to sign were not made known to her before she executed the same; and her counsel’s cross-examination that the loan contract does not bear the seal of the Plaintiff company. The documents she signed includes the loan agreement, exhibit A. This calls for a critical examination of exhibit A. Indeed, there is an interpretation clause or a jurat on page 4 of exhibit ‘A’ which states that:
Signed by the Borrower herein after the contents herein had been read over and explained to the Borrower by Ankrah Danso Samuel in the Twi language and the Borrower seemed perfectly to understand and approve of the same before making his mark.
On the document, the said Ankrah Danso Samuel signed in his capacity as a Banker, and the agreement was executed by the 1st Defendant and on behalf of the Bank by its Branch, Manager, Jerome Amedo. Generally, an interpretation clause is required when a party who is illiterate in the language in which a document is prepared is expected to execute the same. That is the requirement under the Illiterates Protection Act, 1912 CAP 262. It is provided under section 3 therein as follows:
Sec. 3. Conditions for persons writing letters for illiterates.
A person writing a letter or any other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall
(a) Clearly and correctly read over and explain the letter or document or cause it to be read over and explained to the illiterate person,
(b) Cause the illiterate person to sign or make a mark at the foot of the letter or the other document or to touch the pen with which the mark is made at the foot of the letter or the other document,
(c) Clearly write the full name and address of the writer on the letter or the other document as writer of it...".
This notwithstanding, the courts have held that the presence or absence of an interpretation clause is not conclusive of the fact that an illiterate person was made to understand a document he or she executed prior to its execution. The practicality of this was explained by Kpegah JA (as he then was) in Zabrama v Segbedzie (1991)2GLR 221. This was what the court said in holding (2):
The principle was firmly established by a stream of decided cases that where an illiterate executed a document which compromised his interest and that document was being cited against him by a party to it or his privy, there was no presumption in favour of the proponent of the document, and against the illiterate person, that the latter appreciated and had an intelligent knowledge of the contents of the document. The party seeking to rely on the document must lead evidence in proof that the document was actually read and interpreted to the illiterate who understood it before signing same. Being a question of fact, the presence or otherwise of an interpretation clause on a document was one of the factors a court should take into account in determining whether the document in question was fully understood by the illiterate. The presence of an interpretation clause in a document was not conclusive of that 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. 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." See also Duodo & Ors v Adomako &
Adomako (2012) 1 SCGLR 198; In Re Will of Bremansu; Akonu- Baffoe v Buaku & Vandyke (substituted by) Bremansu (2012) 2 SCGLR 1313 which adequately discussed the legal effect of the absence or presence of a jurat on a document and came to the same conclusion as Kpegah JA did in the Zambrama case. In the present case, the position of the Plaintiff is that the 1st Defendant clearly understood the content of exhibit ‘A’. The 1st Defendant in the course of the hearing said in cross-examination on 14/12/2017 that the contentious loan was the 4th loan she had contracted from the Plaintiff. It is reasonable to infer from this piece of evidence that the 1st Defendant is aware of the usual terms and conditions for the grant of loans by Procredit Savings and Loans whose assets and liabilities have now been taken over by the Plaintiff bank. Moreover, the 1st Defendant admitted both in her statement of defence and in her evidence-in-chief that she took a loan of GHC 150,000.00 from Procredit Savings & Loans, but the interest charged was excessive. Another admission she made in cross-examination was that she used the property numbered Plot 32 Block L, Nhyiaeso, Kumasi to secure the repayment of the loan. The evidence also shows that she utilized the entire loan and even started repayment. All these demonstrate that the 1st Defendant knew of the contents of exhibit A as well as her obligations arising from the said agreement. This is further fortified by the interpretation clause on exhibit A. Therefore, the 1st Defendant cannot turn round to say that she was not made to understand the content of the document she was made to sign after she has received monies and assumed obligations under the said agreement. She fully appreciated the nature of the loan agreement she executed and the same is binding on her. Concerning the presence or absence of the Company seal on the contract, the provisions of section 144 of the Companies Act 1963, Act 179, particularly subsection (a) and (b), will be resorted to. It states:
144. Form of contracts
A contract on behalf of a Company may be made, varied or discharged
(a) if the contract, if made between individuals would be by law required to be in writing under seal, or could be varied or discharged by writing under seal only, may be made, varied or discharged in writing under the common seal of the Company
(b) if the contract, if made between individuals would be by law required to be in writing or to be evidenced in writing by the parties to be charged therewith or could be varied or discharged only by writing or written evidence signed by the parties to be charged, may be made, evidenced, varied or discharged, in writing signed in the name or on behalf of the Company.
Flowing from section 144(a), the question which arises is: whether a loan agreement executed between two individuals is required by Ghanaian law to be under seal? The answer is an obvious no! If not, then when a loan contract is to be executed on behalf of a Company which has the powers of a natural person, it is not mandatory for the Company’s seal to be on the loan document. That being the case, it is sufficient if a director or any authorized officer of the Company signs the document on behalf of the Company, within the meaning of section 144(b) of Act 179. In any case, a contract under seal derives its validity merely from the form. A contract under seal must be in writing, and it is conclusive between the parties when it is signed, sealed and delivered. In other words, it is a formal contract that requires no consideration and has the seal of the person executing it attached to it. The form is however elastic, and over time, genuine seals are rarely used. In some cases, the letters “LS” from the Latin words Locus Sigilli, meaning ‘the place of the seal’ are written on the document. In short, the presence or absence of a Company seal does not affect the validity of a loan contract executed by, or on behalf of a Company in Ghana. It is a matter of form, and does not affect the substance of the agreement.
ISSUE OF THE DISCHARGE OF THE 1ST DEFENDANT’S OBLIGATIONS UNDER THE CONTRACT.
This brings to the fore the doctrine of frustration in contract law. Counsel for the 1st Defendant has submitted before this court, based on the evidence of the 1st Defendant, that she took the loan to purchase stocks for her stalls, and after the said stocks had been completely damaged by fire, the contract was frustrated and she was completely discharged from her obligations arising from the contract. On the contrary, counsel for the Plaintiff submitted that the primary obligation of the 1st Defendant under the loan agreement was to repay the loan advanced to her by the Plaintiff to purchase stocks, and so the Defendant must fulfil her obligations under the contract, counsel cited and relied on the case of Barclays Bank (Ghana) Limited v. Sakari (1997-98) 1 GLR 63. Dowuona-Hammond, C. (2011) THE LAW OF CONTRACT IN GHANA Buck Press Ltd at pages 288 to 299 explains the doctrine of frustration in simple terms that:
After a contract has been made, unforeseen contingencies or events may occur through no fault of the parties which make the performance of the contract physically impossible or which may radically change the nature of their obligations under the contract. When such events occur the contract is said to be frustrated and the parties are discharged from the obligations they have undertaken to perform under the contract. Thus, a contract is said to be frustrated where an unforeseen or unexpected event occurs to make the performance of the contract impossible, illegal or radically different from the performance that was contemplated. The doctrine of performance allows the court to bring the contract to an end and do justice between the parties.
How does this principle apply? The first test is to construe the contract itself, that is, the nature or type of the contract and the relevant surrounding circumstances existing at the time the contract was made. Second, the scope and nature of the original obligations of the parties to the contract must be determined. Third, the original obligations must be assessed after the occurrence of the event. Fourth, it must be determined whether the nature of the original obligation has changed or has become radically different after the even has occurred. See THE LAW OF CONTRACT IN GHANA, supra, at page 290. In applying this test, it has been held that events which cause serious inconvenience, hardship, financial loss or delay in the performance of the contract will not be sufficient to constitute frustration of the contract. A case in point is Davies Contractors Ltd v. Fareham U.D.C. (1956) A.C. 696; (1956) 3 W.L.R. 37, where the Plaintiff agreed to build 78 houses for the Defendant within eight months for a fixed price. The work was eventually done in twenty-two months as a result of bad weather, shortage of labour and slow demobilization after the war, the price also shot up, a situation which was not anticipated by the contract. After reviewing the circumstances of the case and applying the test of frustration, the court held that the contract was not frustrated.
The applicability of this doctrine can be seen in the Ghanaian case of Barclays Bank v. Sakari referred to, supra. The facts of that case were that the Plaintiff bank granted the defendant, its customer, a loan to purchase two Mercedes Benz trucks required for the defendant’s business. But, when the defendant received the loan, and without the consent of the plaintiff, it purchased a Saurer tanker instead. A week after the purchase of the tanker, it was seized by the government on the basis that Saurer vehicles were to operated exclusively by the state and not individuals. The Defendant failed to repay the loan, and when he was sued, he put up the common law defence of frustration of the loan agreement arising from the unexpected seizure of the Saurer tanker by the government. The High Court and the Court of Appeal found for the Defendant, and on appeal to the Supreme Court, Acquah JSC,(as he then was), in delivering the judgment of the court made this statement at page 646 of the report:
Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the defendant was to repay the loan together with interest, if any. This is the obligation of the parties under this loan contract, and indeed almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, let us say, a business venture, and the business flops, resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he contracted for. He will still be obliged to fulfil his obligation. Thus, the obligation of the borrower in a loan contract, as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought. (emphasis mine).
This Court has been confronted with a situation where the 1st Defendant took a loan from the Plaintiff to purchase stock for her shop. The money was indeed advanced to the 1st Defendant, and, per the contract, exhibit ‘A’, she ought to have completed repayments 24 months from June, 2014. Seven months to the maturity of the loan, her stalls and stock-in-trade were completely burnt but she had made some payments before that event occurred. Thus, per the agreement, the 1st Defendant knew that her entire obligations under the loan contract were to be fulfilled by June, 2016 and so she notified the Plaintiff about the fire incident. The obligations of the 1st Defendant/Borrower are set out under clause 4 of exhibit ‘A’ as follows:
4.1 The Borrower Shall repay the loan in accordance with the Repayment Plan, hereto attached as exhibit
4.2 The Borrower agrees to pay each and every installment not later than the agreed upon installment date as indicated in the repayment plan by means of paying into his/her Procredit account, account number:270005420008.
Under clause 6.3 of the loan agreement, the defendant, as the borrower, covenanted as follows:
The borrower agrees to notify the lender immediately upon the occurrence of suspicion of any event or condition that would threaten the ability of the Borrower to repay the loan, including any material change to the financial status of the Borrower and/or its business operations. Such notification shall not relieve or excuse the Borrower in any way from fulfilling all obligations under this Loan Agreement. (emphasis).
The 1st Defendant’s exhibit ‘1’ shows that the fire incident on which she grounds her defence of frustration on in this court occurred on 15/11/2015. In exhibit ‘1’, the police stated that following a report lodged by Anita Asare on 18/11/2015, they went to the Central market and found that items in her stall numbered OS 146 147 were destroyed by fire. Items mentioned in the report are jewelries, nail removers, ribbons and other cosmetics. The cause of the fire was unknown and the value of Anita Asare’s items which were destroyed was put at GHC 150,000.00. This report was issued on 18/01/2016. If the Defendant had strictly complied with the agreed repayment schedule, then, by the time the fire occurred on 15/11/2015, only seven installments would have been outstanding, which was certainly not up to GHC 150,000.00. Considering the amount endorsed on the writ of summons and which the Plaintiff bank has testified to, it is highly probable that the Defendant was not making the repayments as she ought to have done. As the evidence shows, that was the fourth loan she had taken from the Bank, therefore, she was fully aware of her obligations to repay the loan she contracted for. In her own words, she reported the incident to the Plaintiff Bank and requested for a further credit facility to restock her stall but the same was not granted to her. Upon a perusal of the loan agreement in issue, the Plaintiff Bank was not under any obligation to advance more monies to the Defendant if any unforeseen event occurred. In terms of clause 6.3 of exhibit ‘A’, referred to supra, the Defendant was not relieved of her obligation under the loan when her stall and stock-in-trade were destroyed by fire, regrettable though it may be.
The Court takes judicial notice of the frequent fire outbreaks in the Kumasi Central Market. This has more of less become an annual occurrence leading to huge financial loss to traders. When operating a business in such an area, it is prudent to take a fire insurance policy to cushion you up in the unfortunate event of fire. This is what the 1st Defendant before this court failed to do. The court has assessed the obligations of the Defendant herein under the loan contract, before and after the fire incident, and comes to a conclusion that the nature of her obligations remain unchanged. The contract has not been frustrated, she is still required to completely settle her indebtedness.
ISSUE OF THE UNCONSCIONABILITY OF THE INTEREST RATE.
The Defendant merely pleaded and repeated in the witness box that the interest charged by the Plaintiff is unconscionable, she failed to demonstrate how she came to this conclusion. The Plaintiff disagreed with her contention. Clause 3 of exhibit ‘A’ talks about the applicable interest as set out below:
3.1 The Borrower hereby agrees to repay the facility together with interest thereon. Interest on the outstanding principal shall be a Procredit base Rate of 26%, plus Risk Margin of 9% per annum.
3.2 The Lender has the right to adjust the interest rate(s) stated herein if developments of the underlying economic parameters necessitate doing so, provided prior written notice is given to the Borrower.
3.3 If the Borrower wishes to terminate this facility earlier than the agreed term, an early termination penalty of 3% of the outstanding principal will apply.
From the foregoing, it is reasonable to infer that the Plaintiff Bank considered the macro and micro economic situation in the country at the time of the loan, continued to monitor the same, and also did a risk assessment, before fixing the interest rate of 26% plus a margin of 9%. Banks in Ghana fix their interest rates based on the bank of Ghana Prime Rate or Monetary Policy Rate. It is common knowledge that in the year 2014, the Bank of Ghana increased its monetary Policy rate, and average lending rates of banks rose to about 27.9%. Factors which the banks consider in adding a margin to the basic lending rate include a high default rate. The risk assessment is done prior to advancing monies to customers, and not after the event. Therefore, it will be inappropriate, and totally out of place for a court to attempt to fix a risk margin for a bank at any point in time. Such an exercise will be an arbitrary one. That said, this court is of the opinion that the interest rate charged by the Plaintiff bank as at 2014, that is, 26% plus a risk margin of 9%, is not excessive. Moreover, the 1st Defendant who had taken three previous loans from the Bank and was conversant with their interest charges willingly accepted the rate contained in the agreement. She cannot rely on the subsequent change in her financial circumstances to challenge the agreed rate of interest which was not a total deviation from the base rates of commercial banks in Ghana in the year 2014.
THE VALIDITY OF THE POWER OF ATTORNEY.
Though not set down as an issue for trial, the validity of the Power of Attorney said to have been executed by siblings of the 1st Defendant who allegedly consented to the use of their interest in the property Numbered Plot 32 Block ‘L’ Tafo Nhyiaeso, Kumasi as security for the loan in issue has become contentious as seen from the record. The validity of the Power of Attorney must therefore be determined before any finding can be made with regards to the mortgage deed, exhibit ‘B’. In Hussey v. Edah (1992-93)4 GBR 1703, the Supreme Court, per Hayfron-Benjamin JSC spelt out the nature of a Power of Attorney in these words (holding 5):
A Power of Attorney was a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, authority to represent him or act in his stead on certain purposes spelt out in the document. If such a power was for use abroad it ought to be authenticated by a notary public. A Power of Attorney might be terminated as provided therein or upon the completion of its object or by death.
The Powers of Attorney Act, 1998, Act 549, section 1 spells out how a Power of Attorney is to be executed. It states:
Execution of Powers of Attorney
(1) An instrument creating a Power of Attorney shall be signed by the donor of the power, or a person authorized by the donor in the presence of the donor.
(2) Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.
(3) Where the instrument is signed by a person authorized by the donor, two witnesses shall be present and shall attest the instrument
(4) This section applies in addition to a requirement under an enactment in respect of witnessing of an instrument creating a Power of Attorney including the rules relating to the execution of instruments by bodies corporate.
At the trial, the plaintiff tendered a power of attorney, exhibit ‘D’ , and the defendant also tendered a power of attorney, exhibit ‘6’, these documents were stamped as ‘original’ and ‘copy of the original’ respectively. The court is to determine whether documents were executed in accordance with section 1(2) of Act 549.
These were the submissions made by counsel for the Defendants on the Power of Attorney:
exhibit ‘D’ is different from Exhibit ‘6’. Exhibit ‘D’ has a jurat at the end of the last page; whilst Exhibit ‘6’ does not have one.
Obviously the said jurat was made after the document had been sent to Germany, and the same sent back to Ghana. So the question is when was the jurat made, as no date was put on the document by any of them, strangely?
Looking at the document closely the Registrar of the High Court stamped and signed the Power of Attorney as a High Court Registrar and a Notary Public for the grantors. So the question again is did the Registrar travel to Germany to witness the three purported signatures?
The Plaintiff was also saying that the document was notarized by the Germany lawyer. So the question again is did the German Notary Public notarize the signature of the Kumasi High Court Registrar since the Notary stamp came after the Registrar’s stamp?
Clearly, all these put doubts on the authenticity of the document. It must be noted that in notarizing documents of that nature, a Notary public is expected to show that the grantor who signed the document identified himself as the real grantor, and this is done by the Notary Public stating the ID which was produced by the grantor and the number of the said ID… Looking at the document, there was no witness because the notary public cannot be a witness and a notary as well. It offends the Act and therefore makes the purported power of attorney invalid, and of no effect.
Counsel for the defendants cited and relied on two cases:
(1) Muhammed Sani Bello v. Joseph Asumadu Nyarko (2011) August GMJ 86 at 98; (Civil Appeal H1/63/2011 Thursday, 9th June 2011, Court of Appeal, Accra), where Kanyoke JA held that:
A proper and valid Power of Attorney must therefore be attested to by at least one witness present when the donor signed it. There is nothing on the face of exhibit A to show that it has been attested to by at least one witness. The Notary Public cannot in law perform the dual role of a witness and a Notary Public or Commissioner of Oaths to the instrument. In effect I hold that Exhibit A is null and void for being offensive to Act 549 and void for not being in accord with section 1(2) of the Power of Attorney Act, 1998 ( Act 549). Exhibit A therefore has no legal effect whatsoever
(ii) Asante-Appiah v. Amponsa (2009) SCGLR 90 per Brobbey JSC at page 94 that:
It is patent on the face of the Power of Attorney signed by the donor that no- one signed it as a witness. The Court of Appeal rightly rejected the argument by counsel for the Plaintiff that the Commissioner for Oaths doubled as both the witness and the person before whom the power was executed…it would be observed that the provision is couched in imperative terms…it was not valid
On these submissions and authorities, counsel for the Defendants invited the court to declare the Power of Attorney tendered by the parties as invalid. Counsel for the Plaintiff expressed her opinion on exhibit ‘D’ as follows:
It is clear on the face of exhibit D that same conforms to the provisions of Act 549. On exhibit D, the donors in the persons of Ama Domfe alias Betty Utz, Kwadwo Asare, Akwasi Fosu and Yaa Adwubi signed and/or thumbprinted by all the donors and same was witnessed by SWENS NUYRE in Germany and the Circuit Court Registrar witnessed same for the Donors. It is on record that Ama Domfe alias Betty Utz, Kwadwo Asare, Akwasi Asare live in Hamburg, Germany and Yaa Adwubi lived in Ghana. That explains why there are two witnesses. Betty Utz, Kwadwo Asare and Akwasi Fosu executed exhibit D in Germany in the presence of their witness, Swens Nuyre, and Yaa Adwubi also executed same in Ghana in the presence of the Circuit Court Registrar, Kumasi, whose signature and stamp appear on page 2 of exhibit D. It has been indicated on exhibit D that the document was prepared in Ghana and sent abroad for execution. What the law requires is that the document must be notorized by a Notary Public in the country where the document was executed… In the instant case, on page 2 of exhibit D, same was notorized by S Nuyre. It does not matter where the stamp of the Notary Public appears on the document. The most important thing is that exhibit D has been notorized. Hussey v. Edah cited.
These are my findings on exhibits ‘D’ and ‘6’ tendered by the plaintiff and 1st defendant respectively. Both exhibits are the same except the interpretation clause which has been added to exhibit ‘D’. It is obvious, as counsel for the Defendants has argued, that the interpretation clause was added to exhibit ‘D’ after the execution and commissioning of the documents. If it were not so, the copy of the original which the 1st Defendant had in her possession would have also contained the said interpretation clause. The absence of the interpretation clause on exhibit ‘6’ is not conclusive that all the donors named therein did not understand the content of the document before executing the same. That notwithstanding, the plaintiff has failed to discredit the evidence on record that Yaa Adwubi, now deceased, was deaf and dumb in her life time and that she was not made to understand the content of exhibit D. Therefore, the document cannot be used against her. Swens Nuyre, the lawyer, who witnessed both exhibits ‘D’ and ‘6’ is the same person who notarized those documents. I have arrived at this conclusion by closely examining the two signatures attributed to Swens Nuyre and S. Nuyre on the document. They are strikingly similar and it is obvious that the signatures are that of one and the same human being. Since the power of attorney was executed abroad by the three named persons to be used in Ghana, it ought to have been notarized by a person other than the named witness. And, to the extent that the same S. or Swens Nuyre performed the dual role of witness and Notary Public, the document executed by Ama Domfe alias Betty Utz, Kwadwo Asare and Akwasi Fosu is defective. Hence, the 1st Defendant, the donee therein, could not have relied on the same to execute any mortgage deed in respect of the property on Plot 32 Block L Tafo Nhyiaso, Kumasi.
The signature of the Deputy Chief Registrar/ Notary on exhibit ‘D’ indicating that the document was prepared and signed before him in Kumasi makes the Plaintiff’s story that the same was sent to Germany for execution by the first three donors doubtful. If that was the case, the Registrar who prepared the document would have stated so on the document. Again, court registrars are not appointed as Public Notaries by the Chief justice of the Republic of Ghana and cannot act as such, they are Commissioners of Oath, per their job descriptions. Indeed, the entire document is shrouded in doubt, it is pregnant with inconsistencies which have not been adequately explained away by the Plaintiff.
WHETHER 2ND DEFENDANT EXECUTED THE MORTGAGE DEED IN RESPECT OF PLOT 32 BLOCK L, NHYIAESO – KUMASI?
It is obvious from the pleadings before this court that the above issue was misstated, the ‘2nd
Defendant’ mentioned in the issue is erroneous. It ought to have read the ‘1st’ Defendant because the Plaintiff pleaded in paragraph 7 of its statement of claim that:
The Plaintiff states that the 1st Defendant provided her property Numbered Plot 32 Block L, Nhyiaeso, Kumasi to secure the repayment of the loan facility and a Deed of Mortgage was prepared to that effect.
This was not specifically denied by the Defendants, rather the 2nd and 3rd Defendants who, according to the pleadings acted as guarantors, averred in paragraph 13 of the Defendants’ statement of defence as follows:
The 2nd and 3rd Defendants deny that they signed the document purporting to be security for the alleged loan referred to in the statement of claim.
That averment has resulted in a confusion of the issue and the error which is so apparent is hereby corrected. The issue will now read: “whether the 1st Defendant executed the Mortgage Deed in respect of Plot 32 Block L, Nhyiaeso – Kumasi?
During cross-examination of the 1st Defendant on 14/12/2017, the following transpired:
Q: In respect of the loan in question, you secured same with property Number Plot 32, Block L Nhyiaeso, Kumasi?
Q: And among the documents you submitted to the Plaintiff was a Power of Attorney from your siblings, is that correct?
A: I sent some documents to the Plaintiff but I gave them money to prepare all the documents in respect of the Power of Attorney.
Q: Have a look at exhibit D, this was one of the documents you sent to the Bank?
A. Exhibit D was not part of the documents I submitted to the bank. I gave them money and they prepared it.
Q: I put it to you that exhibit D was presented by you to the Bank?
A: That is not correct, I am not literate…
On the basis of the foregoing, it is evident that the Plaintiff relied on exhibit ‘D’, the Power of Attorney for the execution of the Mortgage Deed, exhibit B, between the Plaintiff and the 1st Defendant. This is fortified by clauses 3 and 4 of exhibit B which state that:
3.By a Vesting Assent dated the 14th of April, 2014 Akua Afriyie and Kojo Adumako as personal representatives of Afua Sraha alias Afua Dankwaa vested the property in Kojo Asare, Akwasi Fosu, Akua Boahemaa alias Anita
Asare, Yaa Adwubi and Ama Domfe alias Betty Utz plotted on 24th April, 2014 under Document No. ASH 111/04/2014 and property No. TF 18099.
5. By a Power of Attorney dated the 23rd day of May, 2014, Kojo Asare, Akwasi Fosu and Ama Domfe alias Betty Utz and Yaa Adwubi appointed Akua Boahemaa alias Anita Asare to use their interest in the property to secure a loan from the Mortagee. (emphasis added).
The Plaintiff has established by the preponderance of the evidence that the 1st Defendant executed the Mortgage Deed, exhibit B. On the evidence before this Court, the property used as security is jointly owned by the 1st Defendant and her siblings, and without their express consent, the 1st Defendant could not have used their interest to secure the property. The deed of mortgage was also not limited to the interest of the 1st Defendant alone, the entire property was mortgaged. Having rejected the Power of Attorney as defective, all processes that flowed from it, including the Deed of Mortgage are also defective and invalid. Therefore, the Plaintiff cannot enforce the said Deed of Mortgage. This will be an eye opener to the Legal Officers of the Plaintiff who have the duty to ensure that all legal documents presented to the Bank meet the requirements of the law.
WHETHER THE 1ST DEFENDANT IS INDEBTED TO THE PLAINTIFF TO THE TUNE OF GHC 153,936.73.
The Plaintiff’s evidence on this point was that the 1st Defendant did not complete the repayments and as at 2nd March, 2016, her total indebtedness stood at GHC 153,936.73. In her evidence-in-chief before this Court, the 1st Defendant said she started to pay the loan on monthly basis, but sometime in 2015, her two shops and wholesale at the Central Market got burnt and all her goods were burnt. (See paragraph 6 of her witness statement). This piece of evidence points to the fact that the 1st Defendant had not paid off the loan as at the time she filed her defence on 12/01/2017. Yet, when she was being cross-examined by counsel for the Plaintiff on 14/12/2017, she said she had paid off the loan, but her evidence does not show how she liquidated her indebtedness. A party who disputes an issue must lead cogent and credible evidence from which the facts he or she asserts can be inferred. The fact of complete repayments of the loan can be established positively, at least, there ought to be in existence some sort of documentary proof such as pay-in-slips issued to the 1st Defendant or direct deductions from her account with the Plaintiff Bank. Nothing of the sort was put in evidence by the 1st Defendant.
All what is available for the Court’s consideration are her bare assertions and denials on this point. These cannot be sufficient proof that the 1st Defendant has indeed paid off the loan together with all interests. A case in point is Hilodjie v. George (2005-2006) SCGLR 974 at 995 where Woode JSC (as she then was) noted:
In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination in chief or "put" or "suggested" to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden then shifts onto that party to prove contrary facts, if he or she is desirous of avoiding a ruling against him or her on that issue."
Accordingly, the court finds that the Plaintiff has discharged the evidentiary burden placed on it on this point, and hold that that the 1st defendant is still indebted to the Plaintiff to the tune of GHC 153,936.73 as of 2nd March, 2016.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO ITS CLAIM.
The 2nd and 3rd Defendants were sued as guarantors. Even though the three Defendants filed a joint statement of defence, the 2nd and 3rd Defendants did not testify in court. The 1st Defendant who testified did not adduce any cogent and credible evidence that the 2nd and 3rd Defendants were misled into executing the deed of guarantee. Therefore, the guarantees executed by the 2nd and 3rd Defendants, exhibits C and C1, are valid and can be enforced against them. The liability of the 2nd and 3rd Defendants is co-extensive with that of the 1st Defendant. Consequently, all the Defendants are liable to pay off the debt owed by the 1st Defendant to the Bank, that is to say, the sum of GHC 153,936.73 and interest thereon.
The rate of interest shall be at the prevailing Commercial Bank rate and at simple interest. Having found that the mortgage deed is invalid by virtue of the defective Power of Attorney, the Plaintiff is not entitled to the alternative relief for the judicial sale of the property on plot 32 Block L, Nhyiaeso, Kumasi used as security. At best, only the 1st Defendant’s interest can be attached as part of the execution processes, in the event that the Defendants fail to pay the judgment debt. Accordingly, judgment is entered against the Defendants in the sum of GHC 153,936.73 together with interest at the prevailing Bank rate and at simple interest, from 02/03/2016, till date of final payment.
The provisions of order 74 of the High Court (Civil Procedure Rules) 2004, C.I. 47 on the award of costs and the submissions made by counsel have been considered. Looking at the circumstances of this, the Court awards cost of GHC 4,000.00 against the defendants in favour of the Plaintiff.