IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
BANQUE SAHELO-SAHARRIENNE POUR L’IN VETSMENT ET LE COMMERCE (GH) LTD - (Plaintiffs)
PHEEBE’S COMPANY LIMITED, PHILIP ACQUAH, BARBARA WARD ACQUAH, EMMANUEL KOOMSON AND SEBASTIAN ZIGA - (Defendants)
DATE: 31ST OCTOBER, 2016
SUIT NO: BFS/305/2012
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
MS. AKOSUA GYAMFI DUAMROH WITH HER, MS. MONICA GERALDO DE LIMA FOR THE PLAINTIFF
MR. CHARLES BENTUM FOR THE DEFENDANT
By an amended writ of summons the plaintiff claims against the defendants:
a. ‘Payment of the sum of GH₵775,059.49 being the outstanding sum in respect of credit facility granted 1st defendant by plaintiff.
b. Interest on the said sum compounded at the approved rate of 35.5% plus a margin of 125 per annum from the 1st day of August, 2012 till date of final payment.
c. An order for the judicial sale of the mortgaged property being a parcel of land measuring 13.66 situate at East Peduase, Dodowa in the Dangbe West district of the Greater Accra Region.
After the service of the writ and its accompanying statement of claim on the defendants, an appearance was entered followed by a statement of defence. Pre-trial settlement of the case was not successful hence; the matter was referred to trial. Before trial could commence however, the defendants discontinued the third-party action against the third party, that is, the Attorney General. The action was therefore heard between the plaintiff and the defendants. Witness statement was filed by the parties. At the trial, the plaintiff called its representative to give evidence after which the plaintiff closed its case. The defendants also gave evidence through the 2nd defendant and announced the closure of their case.
From the pleadings filed by the parties, the court finds that the 1st defendant company contracted two credit facilities from the plaintiff. The first credit facility was in the sum of GH₵207,000. The second credit facility, the plaintiff maintains, was also in the sum of GH₵168,000 but the defendants say was rather in the sum of GH₵167,000.
From the evidence on record however the court finds that on the 12th day of January, 2010 the 1st defendant company passed resolution to borrow a total of GH₵375,000 from the plaintiff bank. The court also finds from the evidence on record that on the 3rd February, 2010, the 2nd defendant, the Chief Executive Officer of the 1st defendant, executed a Credit Facility-Offer Letter, exhibit A herein from the plaintiff in which it accepted the sum of GH₵207,000 and the sum of GH₵168,000 respectively, being medium term loans from the plaintiff company. The court finds that the total of the amounts stated on the Credit Facility-Letter Offer sums up to GH₵375,000.00. The court finds that on the 20th October, 2010, the 1st defendant executed a Deed of Mortgage, exhibit B in which it acknowledged that it was indebted to the plaintiff in the sum of GH₵375,000. There is also evidence as shown by exhibit C, a Deed of Fixed and Floating Charge, created by the 1st defendant in favour of the plaintiff on the 19th day of April, 2010 in which the 1st defendant acknowledged the receipt of an amount of GH₵375,000.00 as credit facility from the plaintiff. Hence, the defendants’ assertion that the second facility was GH₵167,000.00 and not GH₵168,000.00 cannot be correct.
On the other hand, the court finds that short of stating in paragraph 4 of their statement of defence that the second credit facility was GH₵167,000.00, nowhere in their witness statement did the defendants give an iota of evidence regarding their assertion as to the quantum of the credit facility in the second transaction. Indeed, the law has always been that the party who makes a positive assertion in his pleading carries the burden to adduce sufficient evidence to prove that assertion. This principle is clearly captured in section 11 (4) and 17 of the Evidence Act, 1975, NRCD 323 which states that:
“11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
17. Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”
The court has explained in the recent case of Okudzeto Ablakwa (No. 2) vs. Attorney General &
Another  2 SCGLR 845 at 867 that:
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
It implies therefore that the defendants have woefully failed to adduce evidence to prove their claim in respect of how much they received from the plaintiff by way of credit facility for the second transaction. On the other hand, the plaintiff has adduced sufficient evidence in respect of its claim that the 1st defendant applied for and was given an amount of GH₵168,000.00 in the second credit transaction. Indeed, the court holds that the aggregate result of all the exhibits tendered by the plaintiff is that the 1st defendant company contracted and received from the plaintiff bank an amount of GH₵168,000.00 in the second credit transaction and in total the 1st defendant received from the plaintiff the sum of GH₵375,000.00 in the name of a credit facility.
The court also finds from exhibit B that as a result of the credit facility it received from the plaintiff, the 1st defendant mortgaged a piece or parcel of land described in exhibit B to the plaintiff by way of security for the repayment of the loan which it received from the plaintiff. The plaintiff raised this issue in paragraph 6 of its statement of claim including the fact that the 1st defendant caused a charge to be created over its assets in favour of the plaintiff, as shown by exhibit ‘C’. The defendants admitted the plaintiff’s assertion as a fact in paragraph 6 of their statement of defence filed on the 5th February, 2013.
The court again finds that the defendants have admitted in paragraph 6 of their statement of defence that the 2nd, 3rd 4th and 5th defendants jointly and severally gave a guarantee for the due repayment of the loan contracted by the 1st defendant should the 1st defendant defaults in fulfilling its obligations to the plaintiff. This guarantee, the court finds, is embodied in exhibit ‘D’ executed by the 2nd to the 5th defendants on the 19th April, 2010.
The defendants have also admitted in their statement of defence that according to the terms of the agreement, the facilities attract interest at the rate of 35.5% per annum, subject to amendment at any time and at the option of the plaintiff in line with prevailing market conditions. The defendants have also admitted that the interest was to be paid monthly in arrears. The defendants have further admitted that it was a term of the loan agreement that the principal sums must be repaid on or before the expiry dates of each of the facilities.
The court further finds that the defendants have admitted that balances outstanding on the expiry of either facility shall each attract penal interest of 12% above the agreed interest rate of 35.5%. The defendants have also agreed that the tenure for each facility was eighteen months effective the date of disbursement.
Further, the court finds that the defendants have admitted in paragraph 6 of their statement of defence that, despite the expiry of the facilities, the defendants have defaulted in the repayment of the principal sum together with the charges as well as the interest with the result that as at 1st August, 2012 the total indebtedness of the defendants to the plaintiff stood at GH₵775,059.49 as evidenced by ‘E’.
For the first time in their witness statement, the defendants testified to the effect that the plaintiff herein lacks the capacity to institute the instant action because, in their view, there are two different plaintiffs that originated the instant action. The defendants went ahead to testify that the plaintiff’s action is incompetent and must therefore be dismissed by the court.
The court has examined the statement of defence filed by the defendants and the court finds that nowhere in the said statement of defence have the defendants raised any issue in respect of the capacity of the plaintiff to sue and maintain the instant action. Indeed, Order 11 rule 11(1) specifically requires parties to raise, in their pleadings such legal issues for determination of the court. The rule provides that: “11(1) a party may in pleading raise any point of law.” Again, rule 13(1)(2) (3) of Order 11 provides that:
“13. Admissions and denials
(1) Subject to sub rule (4) of this rule, any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to sub rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party’s defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them.”
Therefore, by failing to raise the issue of capacity in their statement of defence, the defendants’ pleading sinned against the rules and basically denied the plaintiff the opportunity to respond to same. The conduct of the defendants in this regard has the potential to cause surprise not contemplated by the plaintiff. In the opinion of the court such practice should not be countenanced or encouraged by the courts.
In paragraph 1 of the statement of claim the plaintiff described itself as “a limited liability company incorporated under the laws of the Republic of Ghana and engaged in the business of banking and popularly known in Ghana as Sahel-Sahara Bank.” It is worthy of note that throughout the thirteen-paragraph statement of defence, the defendants did not deny this allegation made by the plaintiff in accordance with rule 13(3) of Order 11. Hence, there is, in the view of the court, an operative presumption under rule 13(1) of Order 11 that the defendants have admitted the plaintiff’s capacity as stated in paragraph 1 of the statement of claim. The defendants can, therefore, not be permitted to raise the issue of capacity in their witness statement which is, in fact, their evidence in chief. For, a party cannot be allowed to set up a case contrary to his pleadings.
“A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be the plaintiff or the defendant.” See Dam vs.
Addo and Brothers  2 GLR 200.
The law requires the issue of capacity to be raised first and foremost before a plaintiff will be required to prove same failing which he may even not be heard on the merits of his case. Therefore in Amissah-Abadoo vs. Abadoo  GLR 110, Wiredu J (as he then was) hit the nail right on the head when he said that:
“The only occasion that a plaintiff would be relieved of the duty of establishing his capacity was where his capacity had not been put into issue.”
And in Sarkodee I vs. Boateng II [1982-1983] GLR 715, the court held that
“It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary, to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent.”
Thus, without raising the issue of the plaintiff’s capacity in their pleadings, it will be very presumptuous to allow the defendants do so in their evidence in chief.
Interestingly, the defendants have in their statement of defence, specifically admitted the plaintiff’s capacity when the defendants pleaded in paragraph 2 that “paragraph 1-3 of the statement of claim is admitted”. It is therefore the opinion of the court that, having specifically admitted the plaintiff’s capacity, the defendants have no right to pretend to be contesting the same capacity in their evidence in chief. This is so because Order 23 rule 1 of the High Court (Civil Procedure) Rules, 2004 CI. 47 provides that:
“1. Notice of admission of facts
A party to a cause or matter may give notice, by that party’s pleadings, or otherwise in writing, that the party admits the truth of the whole or any part of the case of any other party.”
Moreover, once the defendants have admitted the capacity of the plaintiff in their statement of defence, they cannot withdraw same except with the leave of the court as stated in rule 5 of Order 23
“5. Withdrawal of admission
An admission made in response to a request to admit or an admission under rule 2 or an admission in a pleading may be withdrawn on consent or with leave of the Court.”
The court finds that nowhere in the proceedings were the defendants granted leave to withdraw the admissions which they made to the plaintiff’s capacity and that being so, the defendants lack the right to challenge the very capacity which they have admitted in their pleading.
At any rate, the court finds that the name by which the plaintiff had sued is the same name by which the defendants contracted with the plaintiff. This is clearly so as shown by the Credit Facility-Offer
Letter attached to exhibit A which was executed by the 2nd defendant, the Chief Executive Officer of the 1st defendant company. Again, the same name appears on exhibit B, the deed of mortgage executed by the 1st defendant. Exhibit C the fixed and floating charge prepared and executed on behalf of the 1st defendant also bears the same name as for the plaintiff. In the opinion of the court, the defendants are estopped by their conduct from denying the capacity of the plaintiff as stated in section 26 of the Evidence Act that:
“26. Estoppel by own statement or conduct
Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between
(a) that party or the successors in interest of that party, and
(b) the relying person or successors in interest of that person.”
From the totality of the evidence on record, the court holds that the plaintiff had succeeded in proving its claims against the defendants. Accordingly, judgment is hereby entered for the plaintiff against the defendants. The plaintiff shall recover cash the sum of GH₵775,059.49 from the defendants. The plaintiff shall also recover interest on the sum of GH₵775,059.49 at the rate of 35.5% plus a margin of 12% from 1st August 2012 till the date of final payment. The court will also make an order for the judicial sale of the mortgaged property being a parcel of land measuring 13.66 situate at East Peduase, Dodowa in the Dangbe West district of the Greater Accra Region.