IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
MAKAF MICRO FINANCE - (Plaintiff)
RAHINATU M. MALIK & ANOR - (Defendants)
DATE: 15TH DECEMBER, 2016
SUIT NO: BFS/113/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MARGARET MARY ADJEI-TWUM FOR PLAINTIFF
MUJEEB RAHMAN AHMED FOR DEFENDANT
This is indeed a small commercial claim .The amount sought to be recovered by the Plaintiff from the Defendant is the sum of GH¢ 12, 160.00 and interest thereon from 08/08/2013 to the date of final payment.
The Plaintiff's case is very simple and concise. It is alleged that the 1st Defendant contracted for a loan of GH¢ 4,000.00 on 08/05/2013 from the plaintiff Micro Finance institution at an interest rate of 12% per month to be repaid within three (3) months. The 2nd Defendant is alleged to have guaranteed the repayment of the said loan which remains unpaid to date. It is this non-payment that has led to the instant suit.
A few observations before I go into the merits of the case. From the record, the 2nd Defendant was not served with the Plaintiff's writ of summons and statement of claim even though a lawyer filed an appearance on behalf of the two Defendants on 06/01/15 at 10:00am. On the same day, but at 1:20pm, counsel for the Plaintiff conducted a search to ascertain whether both Defendants had been served with the writ of summons and statement of claim. The search result indicated that the 2nd Defendant had not been served. Counsel took no steps to ensure that the 2nd Defendant was duly served. Indeed, there is only one affidavit of service of the writ of summons on the 1st defendant on the court's docket. The 2nd Defendant never appeared in court. There is a real doubt as to whether the 2nd Defendant was ever served with the Plaintiff's writ of summons and statement of claim. I am inclined to believe that he was not served and the entry of appearance for both defendants might have been filed in error. as was held in the case of Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd Ors (1998/99) SCGLR 1 at page 2 ( holding 1): " A court has generally no jurisdiction to proceed against a party who has not been served...". The trial proceeded in respect of the 1st Defendant only.
In her statement of defence filed on 26/01/2015, the 1st Defendant did not deny taking the said loan from the Plaintiff to support her business but alleged that on or about June, 2013, thieves broke into her shop and stole all the items she had purchased with the loan. Prior to that, she alleged that she made various payments on the loan to the plaintiff. After notifying the plaintiff about the alleged theft, the 1st Defendant asserted that the Plaintiff's manager assured her that interest would be frozen to enable her raise funds from other sources to complete repayment of the loan.
Following unsuccessful attempts at settlement, the case was placed before me for trial and both counsel were duly served with hearing notice on 15/06/2016 to appear in court on 29/06/2016. However, counsel for the defendants did not show up, the court proceeded to give directions for the filing of witness statements.
A witness statement filed on behalf of the Plaintiff together with its pre-trial check-list on 03/10/2016 were duly served on the 1st Defendant personally on 04/10/2016 as evidenced by the affidavit of service deposed by Samuel Oduro Agyemang and field on 11/10/2016. The 1st Defendant did not file her witness statement and failed to show up at the Case Management Conference scheduled for 18/10/2016. Two hearing notices were again served on her lawyer on 20/10/2016 and 28/10/2016 respectively and there is are affidavits of service filed by Kwabena Gyan (senior bailiff) to that effect. The Plaintiff did not give up and caused another hearing notice to be served on counsel for the 1st defendant on 17/11/2016 in respect of the hearing set for 21/11/2016. Service was effected on counsel because he had not filed any notice of withdrawal. As to be expected, there was a "no show" by the 1st defendant and her lawyer. The court had no other option than to proceed to hear the Plaintiff's case under Order 36 rule 1 (2) (a) of the High Court (Civil Procedure) Rules, 2004 which states as follows:
" 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;"
The issues for determination are :
Whether or not the 1st defendant is indebted to the plaintiff to the tune of GH¢ 12, 160.00?
Whether or not the plaintiff is entitled to its claims?
At the trial, an accounts officer of the Plaintiff company by name Joyce Oduro who filed a witness statement on behalf of the company gave evidence. She relied on her witness statement filed on 03/10/2016 and the exhibits attached. Her oral evidence was a repetition of the averments contained in the Plaintiff's statement of claim. She however supported that with a loan application and appraisal form signed by the 1st Defendant for a loan of GH¢ 4,000.00, (exhibit B).
The 1st Defendant on whom the evidential burden of the alleged repayments rests failed to participate in this trial. Therefore, the only evidence available for the court's consideration is that of the Plaintiff.
From the Plaintiff's testimony, the 1st Defendant has defaulted in repayment of the loan since 08/06/2013. Strangely, there is no date on the loan application and appraisal form, exhibit B. The portions of the document where the date the loan was granted and the expiry date were to be indicated were left blank. The plaintiff did not also exhibit any statement of account to proof the actual date the loan was disbursed. But, on exhibit C, the 1st defendant accepted the loan on 03/06/2013. Exhibit C is the Plaintiff's own document but it contradicts its claim that the facility was granted on 08/05/2013 for a period of three months and it expired on 31/07/2013.
On the one hand, if the loan was granted on 08/05/2013 for three months as stated by the Plaintiff in its statement of claim, then it would have expired on 08/08/2013 and not 31/07/2016. On the other, if the Defendant accepted the loan on 03/06/2013 as per exhibit C , then the same would have expired on 03/09/2013.
By the preponderance of the probabilities, the loan was advanced to the 1st Defendant in June, 2013 for a period of three months , and not May, 2013. By the averment contained in paragraph 4 of the Plaintiff's statement of claim, the amount endorsed on the writ of summons includes the principal sum and accumulated interest for thirteen (13) months. Therefore, the Plaintiff cannot claim interest from 08/08/2013 as the same is unfounded! There is every indication from the evidence before me that the 1st Defendant did not service the loan at all. Thirteen months default prior to the issuance of the writ of summons would be somewhere 03/07/2014.
I accept the Plaintiff's evidence that the 1st Defendant's indebtedness is GH¢ 12,160.00 but that is inclusive of accumulated interest for thirteen (13) months. The Plaintiff is entitled to interest on this sum from 03/08/2014 to the date of delivery of judgment and post judgment interest from the date of delivery of judgment to the date of final payment. The rate of interest cannot be the rate contained in the agreement because that was for only three months. Therefore, the rate of interest will be the prevailing bank rate and at simple interest.
The 1st Defendant is to note that she has not helped her own cause. She had legal representation; her lawyer did not withdraw from the case even when she proved to be evasive. She ought to have known that this being a civil suit, the court is enjoined by the provisions of Order 10, 11 (4) and 12 of the Evidence Act, 1975 NRCD 323 to analyze and weigh the evidence on record and to determine which of the rival claims is more probable and is deserving of a favourable verdict. When she failed to give evidence, the only evidence available to the court was that of the plaintiff; i carefully analyzed the same and came to the conclusions in the foregoing paragraphs. In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003-2004) SCGLR 420 Brobbey JSC commented on the evidential obligations of parties to a civil suit as follows:
... A litigant who is a defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant ..."
Such is the plight of the 1st Defendant who turned down every opportunity given to her to prove her case by her conduct. Judgment is accordingly entered in favour of the Plaintiff against the 1st Defendant in the sum of GH¢ 12, 160.00 plus interest at the prevailing bank rate from 03/08/2014 to the date of delivery of judgment; and post judgment interest at the same rate from the date of delivery of judgment to the date of final payment. For the avoidance of doubt, the Bank of Ghana 91 days Treasury Bill Rate is to be used as the prevailing bank rate.
Cost of GH¢ 3000 is awarded against the 1st Defendant.