IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
WISE BOATENG - (Plaintiff)
JAMES KWABENA ANTWI - (Defendant)
DATE: 16 TH JULY, 2018
SUIT NO: OCC 03/2018
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS: DENNIS OSEI ANTWI WITH FRANCIS OPUNI KESSE FOR PLAINTIFF
On the 22nd of August, 2017 the Plaintiff instituted an action against the Defendant. By his writ of summons, the Plaintiff sought the following reliefs:
a. Recovery of an amount of Three Hundred and Ten Thousand Ghana Cedis (GHC310,000.00) inclusive of interest being the total outstanding amount due the Plaintiff from the defendant as at 31st July, 2017.
b. Interest rate on the said sum beginning from 1st August, 2017 till date of final payment.
Appearance was entered on behalf of the Defendant by his solicitor on the 10thof October 2017 and he later filed a statement of defense. The Defendant denied liability to the plaintiff’s claim on the basis that he does not owe him.
After unsuccessful attempts at settlement, three issues were set down for trial namely:
1. Whether or not the Defendant is indebted to the Plaintiff to the tune of GHC310, 000 as at 31st July, 2017.
2. Whether or not the Defendant secured the transaction with the landed property numbered Plot 22 Kwabena Antwi Street, Twumduase, Kumasi.
3. Whether or not the Plaintiff is entitled to his claim.
It is observed that per the Court’s records, the Defendant was duly served with hearing notices to attend court for the trial to commence but he failed to show up. This is evidenced by the affidavits of service sworn on 09/05/2018, 31/05/2018 and 03/06/2018. The Defendant also failed to comply with the orders of the court to file his witness statement. The court consequently invoked Order 32 rule 7A of the High Court (Civil Procedure) (Amendment) Rules, 2014, CI 87 and struck out the defence of the defendant. With the continuous absence of the Defendant, the court had no option than to proceed with the case under order 36 rule 1(2)(a) of the High Court (Civil Procedure) Rules 2004, CI 47. It states:
Rule 1(2) where an action is called for trial and a party fails to attend, the trial judge may;
a. Where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
On the basis of the rule, the plaintiff was allowed to prove his claim on the 19/06/2018. The Plaintiff relied on his witness statement filed on 28/5/2018. The plaintiff’s case is that he is a businessman trading under the name and style ‘Wise Boateng Enterprise’ located within Adum, Kumasi. Plaintiff says that he knows the Defendant as a businessman in the haulage transport business and that sometime in December 2016, the Defendant approached him for financial assistance to support his business. According to the plaintiff, he lent GHC250, 000.00 to the Defendant and the conditions were that the Defendant pays back the money in 3 months beginning the ending of January 2017 at interest rate of 10% per month. It is also the case of the plaintiff that the defendant used his landed property Plot No. 22 Kwabena Antwi street, Twumduase, Kumasi as collateral for the amount. This is evidenced by a copy of the lease hold documents (Exhibit A), statutory declaration using the property as collateral for the money (Exhibit B), receipt showing receipt of documents of Defendant’s property (Exhibit C).
According to the Plaintiff, the Defendant has paid a total of GHC 75,000.00 after several and persistent demands were made on him. The defendant later gave the Plaintiff 3 cheques which have been dishonoured by the Societe Generale Bank, Ghana as evidenced by Exhibit D. The Plaintiff says that the total indebtedness of the Defendant stood at GHC310, 000.00 as at July, 2017. The crux of the case is that the Defendant is indebted to the Plaintiff the sum of GHC310, 000.00 as at July, 2017 and the latter is demanding same from the former with interest from 1st August, 2017 to date of final payment.
To succeed in his claim, the Plaintiff is required to prove his case to the required standard in civil suits, that is by the preponderance of probabilities as required by sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323). The Plaintiff’s burden of proof is not dispensed with despite the fact that the Defendant chose not to participate in the trial. In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses. Thus, in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 884, the Court held as follows:
“It is sufficient to state that being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”
I shall proceed to discuss the issues to ascertain whether plaintiff has led cogent evidence to establish his claim. All the issues would be tackled together as they are inextricably linked.
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.’’
Also, in the case of Printing and Numerical Registering Co. vs. Sampson (1975) L R 19 EQ 462 at 507
Sir George Hessel said:
“If there is one thing more than another which public policy requires, it is that men of full age and understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and enforced by courts of justice.”
From the evidence on record, there is no doubt that there is a loan agreement between the parties. A statutory declaration (Exhibit B) executed by the defendant captures the terms of the said agreement. Relevant portions of the document states:
4. That I have obtained a financial assistance of GHC 250,000.00 (Two Hundred and Fifty Ghana cedis) from MR. WISE BOATENG trading under the business name and style WISE BOATENG ENTERPRISE to be repaid within three (3) months starting from 31st March, 2017.
5. That the said amount of GHC250, 000.00 shall attract interest of 10% per month and the said interest is supposed to be paid monthly.
6That as a security for the repayment of the financial assistance I have offered property mentioned at paragraph 2 above to Mr. Wise Boateng.
From the agreement, the defendant was supposed to pay the amount of GHC 250,000.00 in three months. The principal sum also attracts interest of 10% per month. The defendant also used his property number Plot 22 Kwabena Antwi Street, Twumduase near Kumasi as security for repayment of the loan. This agreement was voluntarily entered into by the defendant. Consequently, the court can enforce the terms against him. In fact, as a businessman the plaintiff could have used the money advanced to the defendant to advance the cause of his own business. I appreciate the fact that the compound interest of 10% per month appears to be high but once the parties have agreed to it the court is not in a position to set it aside. The wishes of the parties must be respected. There is incontrovertible evidence on record that the defendant only paid GHC75, 000.00 of the principal sum and that the defendant’s indebtedness to the plaintiff which includes the interest payable stood at GHC310, 000.00 as at July, 2017.
Accordingly, I enter judgment in favour of the plaintiff against the defendant in the sum of GH¢310,000.00 plus the payment of the prevailing commercial bank interest rate on the principal sum from 01/08/2018 to date of final payment. In the alternative, the plaintiff can cause judicial sale of Plot 22 Kwabena Antwi Street, Twumduase near Kumasi to defray whole or part of the debt.
Costs of GH¢6,000.00 is awarded against the Defendant.