IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
SOCIETE GENERALE GHANA LTD -(Plaintiff)
AL-SAFA INTERNATIONAL TRADING LTD. AND MURKTAZA KHAN - (Defendants)
DATE: 29TH APRIL, 2016
SUIT NO: BFS/13/2014
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Plaintiff claims jointly and severally the following reliefs endorsed on its writ issued against the defendants :
i. The total sum of GHc369.209.68 being the outstanding balance and accrued interest as at 31st March, 2014 on an overdraft and revolving loan facilities granted to the 1st defendant by the plaintiff.
ii. Interest at the prevailing bank rate on the said GHc369, 209.68 from 1st April, 2014 till the final payment.
iii. Further or other reliefs.
In an eight paragraph statement of claim the plaintiff avers that on the 5th of March, 2014 upon 1st defendant’s request it approved and granted an overdraft facility of Ghc200.000 and a revolving loan facility of GHc150.000.00 to the 1st defendant which was to be retired within twelve months of disbursement. The loan granted had an interest rate of 25.5% per annum collectible monthly in arrears and a penal rate of 6% above the interest rate. Besides, in the event of expiration of the loan any amount of the loan due and unpaid was to attract another penal rate of 35.5% per annum. 2nd defendant agreed to guarantee the due repayment of the loan which he has failed to do and hence the reliefs it seeks before the court.
Judgment in default of appearance had been taken against the 1st defendant and what is left to be determined is in respect of the guarantee plaintiff claim was issued by 2nd defendant. 2nd defendant filed an appearance and a defence to the claim.
Accordingly the pre trial Judge stated two main issues for determination and these were:
1. Whether or not the plaintiff is entitled to an amount of Ghc 369,209.68 or any part thereof
2. Whether or not the interest charged on the facilities is unconscionable.
As part of the preparations towards the trial the court ordered the plaintiff and 2nd defendant to file their respective documents and witness statements. Plaintiff duly complied and filed same. 2nd defendant failed to comply and the court invoked its powers under Rule 7A of Order 32 of the High Court (Civil Procedure) Rules as inserted by the High Court (Civil Procedure) Amendment Rules, CI 87 to strike out the statement of defence of the 2nd defendant. As same had been struck out the court does not find it as serving any useful purpose to recount what 2nd defendant claims to be his defence in the action as there is none at the moment.
The case management conference nonetheless proceeded with the admission of the witness statement of the plaintiff’s representative, Diana Oppong as the evidence in chief. Plaintiff then tendered an overdraft facility agreement for Ghc200.000 as Ex ‘A’, its terms and conditions as A1’, a deed of assignment as Ex ‘B’, the guarantee agreement signed by 2nd defendant as Ex ‘C’, Ex ‘D’ is the statement of account of the 1st defendant showing its level of indebtedness whiles the last document of plaintiff is a demand letter from the solicitors of plaintiff to defendants as Ex ‘E’.
Plaintiff’s representative mounted the box and her witness statement and the exhibits were formally admitted into evidence. As 2nd defendant was fully aware of the date when the matter was adjourned for trial to commence because 2nd defendant’s representative was in court and is deemed to have duly informed 2nd defendant of what transpired in court. In the absence the 2nd defendant to be in court to cross examine the plaintiff’s representative, the court discharged Plaintiff’s representative, Diana Oppong as a witness.
It is the rule that the failure by a party to cross examine a witness on vital matters testified to is deemed to be an admission of those matters and a party need not call further evidence on that. See the following cases:
FOLI v AYIREBI  GLR 627; BILLA v SALIFU  2 GLR 87; BEDIAKO v THE STATE  1 GLR 48; LANQUAYE v THE REPUBLIC  1 GLR 1; TAKORADI FLOUR MILL v SAMIR [2005-2006] SCGLR 882; BANDA v The REPUBLIC  1 GLR 52.
Plaintiff’s testimony and documents evidencing its claim to the reliefs were not challenged and examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. Judgment is accordingly entered for the plaintiff against the 2nd defendant in respect of its claim of an amount of Ghc369, 209.68, interest on the said amount at the prevailing bank rate from 1st April, 2014 till date of final payment.
I will award cost of Ghc20.000.00 in favour of the plaintiff against 2nd defendant.