This case was transferred to this court by Her Ladyship the Chief Justice on the 27th July, 2016.

A brief summary of the facts in this case is that the Plaintiff granted the 1st Defendant a local purchase Order Finance of GH¢320,000.00 for a term of 3 months at an interest of 29% per annum to enable the 1st Defendant to supply computers, computer accessories, car tyres and car batteries. The said facility was guaranteed by 2nd and 3rd Defendants and a legal mortgage over a property at Amasaman, Accra. The Defendants defaulted in the repayment of the facility. The Plaintiff brought the present action asking for the following reliefs:-

a)    A recovery of the sum of GH¢214,331.72 being as at 2nd November, 2011 the outstanding balance of the facility advanced to the 1st Defendant Company.

b)    Interest on the amount of GH¢214,331.72 from 25th October, 2010 to the date of final payment at the prevailing bank lending rate.

c)    Alternatively the judicial sale of H/No. A138, Abehenease with Registration No. AR/5549/2005 situate at Amasaman, Accra

Costs occasioned by this action.

In view of the transfer, the case suffered series of adjournments as the Defendants were not attending court after the transfer to this Court. Despite hearing notices being served on the Defendants, they failed to attend court. The court on the 20th July, 2017 ordered the parties to file their respective witness statements and check- lists with a further order that the Plaintiff should serve the Defendants with a copy of the order. The matter was adjourned for case management. Despite being served with a copy of the order made on the 20th July, 2017, the Defendants failed to file their witness statements and check-lists. On the 5th March, 2018, the Court in conducting case management and in compliance with Order 32 rule 7A(3)(b) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) as amended by C.I.87, struck out the statement of defence and counter claim filed by the Defendants. They were accordingly ordered to open its case in proof of its claim.

Hearing notice was accordingly served on the Defendants. On the 12th April, 2018, the Defendants were represented in court by Mr. Charles Lamptey and counsel for Defendants failed to attend court to conduct cross- examination of the witness called by the Plaintiff.

The case of the Plaintiff is that on the 23rd August, 2010, the 1st Defendant acting through its Managing Director or CEO, applied for a loan facility of GH¢360,000.00 to enable it supply computers and accessories, car tyres and batteries to the Ghana Government Pensioners Association, Ghana Statistical Service and Ghana Audit Service.

Plaintiff further stated that the 1st Defendant was granted a loan facility in the sum of GH¢320,000.00 at an interest rate of 29% per annum. The facility was for a period of 3 months. It is the case of the Plaintiff further that the 2nd and 3rd Defendants executed a joint and guarantee. Plaintiff contended further that the 1st Defendant defaulted payment and as at 2nd November, 2011, the outstanding balance on the facility stood at GH¢214,331.72. The application letter for the facility, the Banking Facility Agreement.

The Joint and Several Guarantee issued by 2nd and 3rd Defendants were tendered in evidence as Exhibit A, B and E. The Plaintiff also tendered in evidence a bank statement of account of 1st Defendant as Exhibit F. at the end of the examination in-chief of the Plaintiff’s representative, the Defendants’ representative who was in court was invited to cross-examine the witness. He indicated that he had no questions for the witness. It is noted that defence counsel did not find it necessary to attend court or write to the court. The court noted that since the case was transferred to in 2016, defence counsel has never on a single day attended court to represent his clients despite being served with hearing notices. It is also noted that the Defendants have consistently been absent from court except on the 12th April, 2018 when they were represented by Mr. Charles Lamptey. Defence counsel once again failed to attend court. The general rule in civil cases is that the party who in his pleadings or writ of summons raises issues essential to the success of his case assumes the onus of proof.

Section 14 of the Evidence Act, 1975 (NRCD 323) therefore provides that:

“14. 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.”

Ollenu JSC (as he then was) stated in the case of FAIBI v STATE HOTELS CORPORATION [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 no party who would lose if no further evidence was led.”

The Plaintiff in the instant case has the burden of proof. To discharge this burden, the Plaintiff is required to establish a requisite degree of belief concerning the facts in the mind of the court. As was stated by the Supreme Court in ACKAH v PERGAH TRANSPORT LTD [2010] SCGLR 728 at 736 that:

“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often descried as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probably than its non-existence.....”

Did the Plaintiff satisfy the requirement imposed on it by law in proof of its claim?

Exhibit A’ which was attached to the witness statement of Plaintiff’s representative is the letter of application which the 2nd Defendant wrote as the Chief Executive Officer of 1st Defendant Company requesting for a loan facility. Plaintiff tendered in evidence Exhibit ‘B’ which is the facility Agreement. An examination of Exhibit ‘B’ shows that the 1st Defendant executed the Loan Agreement through its Chief Executive Officer who happened to be the 2nd Defendant. Exhibit ‘E’ is also the Joint and Several Guarantee executed by the 2nd and 3rd Defendants on behalf of the Plaintiff. Exhibit ‘F’ is also the statement of account of the 1st Defendant.

I have examined these pieces of evidence tendered by the Plaintiff and I have no doubt in my mind that the 1st Defendant obtained a Loan facility of GH¢320,000.00 from the Plaintiff. I further have no doubt that the interest exigible on the loan facility was 29% per annum. Furthermore, I am convinced on the preponderance of probabilities that the Defendant defaulted payment and as at 2nd November, 2011 the 1st Defendant owed an outstanding balance of GH¢214,331.72. I must note that after the testimony of Plaintiff’s representatives, the defendants’ representative who was in court was given opportunity to cross-examine the witness. He however said he had no question. The position of the law is that if a witness testifies and the opponent consciously fails or refuses to cross-examine him, the court may consider the evidence as admitted by the opponent: See QUAGRAINE v ADAMS [1981] GLR 599. In TAKORADI FLOUR MILLS v SAMIR [2005- 2006] SCGLR 882, Ansah JSC referred to the case of TUTU v GOGO (Civil Appeal No. 25/67, dated 28th April, 1969, unreported digested in 1969 CC, 76) where Ollenu, JA 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.”

In the light of these authorities, I find it lawful to accept the evidence led by the Plaintiff’s representative.

The lack of cross-examination and the presumption of admission notwithstanding, I find sufficient evidence, which is credible and relevant, in the evidence adduced by the Plaintiff in this matter. There is no doubt in my mind that the Plaintiff has succeeded in discharging the burden of proof in this case. It is therefore my considered opinion that the Plaintiff should be entitled to its reliefs. Judgment is accordingly entered for the Plaintiff to recover the sum of GH¢214,331.72 with interest at the contractual interest rate of 29% from 25th October, 2010 when the Defendants defaulted payment till the date of this judgment, that is 20th April, 2018.

The Plaintiff is to have its costs assessed at GH¢20,000.00 against Defendants.