IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
SOCIETE GENERALE, GHANA LTD - (Plaintiff)
M.K.AWI ENTERPRISE LTD AND FRANCIS MAWUNYO AWI - (Defendant)
DATE: 3 RD JULY 2018
SUIT NO: E2 / 68/2015
JUDGES: ERIC BAAH JUSTICE OF THE HIGH COURT
LAWYERS: NUROO-DEEN SAEED FOR PLAINTIFF
Per its writ of summons dated 20 February 2015, the plaintiff claims against the defendants jointly and severally for:
a) GH¢47,719.00 being the outstanding balance and accrued interest as at 31 December 2014 on banking facilities granted to the 1s' defendant by the plaintiff.
b) Interest at the prevailing bank rate on the said GH¢47,719.00 from 1st January 2015 until date of final judgment.
c) An order for the judicial sale of the 2nd defendant's property situated in and known as #B8, Ho-Bankoe, charged to the plaintiff by the 2nd defendants; and
d) Further or other relief.
The plaintiff and the defendants each called a witness. The plaintiff's witness was Eric Kuotey who relied on his witness statement filed on 29 June, 2015. He testified on 1 February 2018. Defendants' witness was Francis Mawunyo Awi (2nd defendant) who testified on 24 May, 2018 by relying on his witness statement filed for defendants on 21 July, 2015. On 28 April, 2016 Intelysis audit company was appointed by the court to reconcile the accounts between the parties and present a report to the court. The parties submited their records to the audit firm for the task. On 2 February, 2017, Ben Korley, a managing partner of Interlysis and a chartered accountant, testified and presented the report of his firm. It was admitted and marked exhibit CE1. I will revert to the testimonies of the witnesses for the parties and the court witness in the determination of the issues set down when necessary.
The following issues were set down for the determination of the case.
Whether or not the plaintiff granted a restructured loan facility to the 1st defendant.
Whether or not the defendants have repaid the said facility.
Whether or not the defendants are indebted to the plaintiff.
a. Whether or not the plaintiff granted a restructured loan to the defendants
In paragraph 3 of the statement of claim, and in paragraph 8 of the evidence (witness statement) of the plaintiff's sole witness, Eric Kuokey, the plaintiff asserted that the 1st defendant was granted a restructured loan of GH¢36,445.00, to offset the outstanding balance on 1ST defendant's overdraft facility:
Under cross-examination the plaintiff's witness maintained that the 1st defendant was indeed granted the facility of GH¢36.445.00.
The plaintiff's case was that, the said grant was used to offset the balance on the existing overdraft facility, leaving a credit balance of GH¢87.16.
Inspite of that meager credit balance, the defendants issued a cheque for the sums of GH¢30,000.00 and GH¢5,000.00, which the plaintiff honoured.
As to how the defendants were allowed to draw those two sums without any formal agreement, when the credit balance for 1st defendant was GH¢877.16, remained a mystery in this case.
All the same, the plaintiff insisted that the 1st defendant was indeed granted the said restructured loan which with the accrued interests, had risen to GH¢47,719.00 by 27 February, 2017, when this action was mounted.
The defendants deny the claim. they claim that the balance on the current accounts as of 20 February, 2012; before the loan was credited to the 1st defendant, was a debt balance of GH¢36,365.84. It was their contention that when the loan of GH¢36,445.00 was credited to the account on 21 February, 2013, the current balance had a positive of GH¢89.16. The defendants then drew the account by the sums of GH¢30,000:00 and GH¢5,000.00 respectively. With the deposits made by the defendants, they perceived the balance to be a surplus of GH$448.53; taking into account deductions and bank charges. The defendants' claim that the 1st defendant was not granted a restructured loan, defied the established facts. Per the plaintiff's exhibit “A”, the 1s' defendant was granted a facility of GH¢36,445.00 on 3 January, 2013. The type of facility is identified in the agreement as a "restructured loan" the sum was additional to 1st defendant's outstanding balance of GH¢10,776, as at 31/12/12.
The 2nd defendant guaranteed the loan for 1s4 defendant and provided his landed property as security; as evinced by exhibit “C”. Exhibit “A” was executed by the 2nd defendant for and on behalf of the 1st defendant. The 2nd defendant did not claim to be an illiterate. He did not claim not to have understood exhibit “A” before he executed it. He did not claim that he was deceived or otherwise misled to execute exhibit “A”, which was for a "restructured loan.” There were other evidences indicating that the loan granted per exhibit “A” was a "restructured” one. In exhibit “G”, the plaintiff banks recovery unit wrote to the defendants to take steps to liquidate the outstanding loan facility of GH¢45,303.00 by making a down payment of GH€9,060.00, representing 20% of the debt.
The 2nd defendant per a letter, exhibit “F”, headed "Letter of appeal” and dated 28 February, 2014, responded to the plaintiff's letter (exhibit E). The defendants sought to account for their failure to meet the loan repayments. They also outlined certain measures taken to ensure that the loan was repaid. This included the sale of their landed properties.
They prayed the plaintiff, in the last paragraph:
"In addition we will be grateful, if you use your high office to stop the interest from accruing especially in these hard time since the repayment of the principal is already telling on our sustenance
The defendants were accordingly fully aware that there is an outstanding balance on the loan granted, and further that there had been defaults in the liquidation of the loan. It was in response to the defendants letter (exhibit “F') that the plaintiff wrote another letter, exhibit “GE” this time, stating the debt as GH¢50,846.44 and asking the defendants to contact the Recoveries Unit for resolution. When the defendants failed to abide the proposal by the plaintiff, the matter was referred by the plaintiff to their counsel, resulting in the letter from plaintiff's counsel to the defendants as per exhibit H, which demanded for the sum of GH¢47,719.00, which had then accrued on the principal and interests. The Business Dictionary (www.businessdictionary.com) expatiates on what is meant by a “restructured” or “rescheduled” loan as:
"New loan that replaces the outstanding balance on an older loan, and is paid over a longer period, usually with a lower instalement amount. Loans are commonly rescheduled to accommodate a borrower in financial difficulty and, thus, to avoid a default ...".
The restricted loan captured in exhibit “A” replaced the outstanding balance on an older or existing loan. It was to be paid over a new span of time beyond, the deadline for the old loan. It was granted because the borrower; 1st defendant, was in financial difficulty and required it to avoid default. It was therefore a restructured loan by definition, content and substance. From the foregoing, the defendants did not, and could not have relied on the defence of non-est factum-not my deed, in respect of the contract for the restructured loan (Exhibit A).
The defendants are bound by the restructured loan contract, evinced by exhibit A. The claim by the defendants that the loan granted in exhibit “A” was not a restructured loan was therefore wrong.
b. Whether or not the defendants have repaid the said facility
The claim by the defendants to have repaid the restructured loan, stemmed from sheer confusion, ignorance and plain malice. The plaintiff tendered their statement of accounts as exhibit “B”. Exhibit “J”, labeled “transaction narration”, details the disbursement of the loan, the due dates for payment of principal and interests, and the outstanding balance. Unless that statement is wrong; which I doubt, the balance outstanding as at 5 March 2015 was GH¢46,058.10. When the 2nd defendant was cross-examined by plaintiff's counsel on 24 May, 2018, the 2nd defendant was able to establish that a payment of GH¢2,290.00 made by him on 7 March, 2013, was not captured in the account statements. Counsel for the plaintiff graciously conceded this fact.
The court then cross-examined 2nd defendant as follows:
Q. Aside the GH¢2,290.00 you identified as not recorded in your favour in the Statement, is there any other amount you identified?
A. There is none until I started handling my case that I discovered the - GH¢2,290.00. I did not identify any other payment made by me which was not recorded.
That meant that all the payments made by defendants were accounted for; save the GH¢2,290.00, before the final figure of debt was arrived at. Based on the defendants' own admission, the conclusion of the court is that, the defendants have defaulted in repaying the loan as claimed, minus the omitted payment of GH¢2,290.00
c. Whether or not defendants are indebted to the plaintiff.
The defendants insisted up to the close of the case that the full indebtedness has been fulfilled and therefore did not owe the plaintiff. The statements of accounts of the defendants tendered by the plaintiff contradicts that claim. In the course of the dispute, the defendants unilaterally contracted auditors to audit their accounts with the plaintiff. The audit report was annexed to 2nd defendants witness statement filed on 22 July, 2015. The said audit report had no probative value as evidence before this court. In the first place, the auditor was commissioned by the defendants, without the knowledge or consent of the plaintiff. Secondly, the auditor used only the materials submitted to him by the defendants. Thirdly, the auditor did not appear as a witness to tender the report so as to be subjected to cross-examination. The report was not properly tendered and was never tested, since the 2nd defendant who tendered it was not the maker and could not have been cross-examined on it. The report was self-serving and the court decided to ignore it. On the other hand, the court by a proper order, appointed an audit firm, Intelysis, to audit the accounts between the parties. As aforesaid, an officer from the firm testified and tendered the report as exhibit CE1. The firm in its testimony and the report; exhibit CE1, concluded that the defendants owe the plaintiff the amount of GH¢46,058.10, as at 14 April, 2015, on the restructured loan. The court is not compelled to accept the conclusions of a court expert. However, the court must always give cogent reasons why it does not accept such a report. In casu, the audit report by Interlysis corroborated the records on the restructured loan transaction and the averments and testimony of the plaintiff. In the circumstances, I had no reason to reject the report. I concluded that the defendants owed the plaintiff the sum of GH¢46.058.10, as of 14 April, 2015. This leads me to conclude on the last issue that the defendants are indeed indebted to the plaintiff.
The above means that all the three issues set down have been resolved in favour of the plaintiff. It was established by the evidence that the plaintiff gave the 1st defendant a restructured loan on the overdraft and that eh 2nd defendant secured the loan with his landed property. It was also proven by the evidence that there is an outstanding balance on the payment of the said loan. Lastly, it was established that the defendants still owe the plaintiff. The plaintiff established its claims on the balance of probabilities. I enter judgment for the plaintiff as follows:
The defendants are liable and are ordered to repay the sum of GH¢46,058.10 that was due on the principal and interest as at 14 April, 2015.
Interest at the prevailing bank lending rate is to be paid by the defendants on the sum of GH¢46,058.10 from 14, April, 2015 to date of final payment.
The court orders the judicial sale of 2nd defendant's landed property, No. B8, Ho-Bankoe charged to the plaintiff by the 2nd defendant as security for the loan.
The defendants are already down. Any further aggravation may sink them. I make no order as to costs.