BENEFICIAL COOPERATIVE SAVINGS & CREDIT SOCIETY VRS BOACHIE (A2/69/2022) [2024] GHADC 258 (26 March 2024)

IN THE DISTRICT COURT ‘B’, HELD AT SUNYANI ON WEDNESDAY THE 26TH DAY OF MARCH 2024, BEFORE HIS WORSHIP ERIC DANING ESQ DISTRICT MAGISTRATE IN THE MATTER BETWEEN: BENEFICIAL COOPERATIVE SAVINGS & CREDIT SOCIETY ..PLAINTIFF SUIT NO. A2/69/2022 AND BENJAMIN BOACHIE …………. DEFENDANT JUDGEMENT The Plaintiff cooperative society claims against the defendant for; (a) Recovery of cash the sum of GH¢55,558.04 representing the total outstanding balance as at 28/3/22 on a loan facility of GH¢40,000 with an interest at the rate of 4% per month which the plaintiff granted to the defendant on 23/12/2020 to be paid on or before 23/12/21 for a period of 12 months which said amount the defendant has willfully refused or failed to pay despite persistent demands. (b) Interest at the prevailing Bank rate on the outstanding amount from 1/04/2022 till the final date of payment. In the summary of subject matter of the claim, plaintiff stated that on or about 23/12/2020 it granted a loan facility of G40,000.00 to the defendant with interest at the rate of 4 % per month to be paid on or before 23/12/21. It is the case of the plaintiff that defendant has defaulted in the repayment of the facility in accordance with the terms and conditions entered into such that as at 28/3/2023 the defendant’s indebtedness to the plaintiff stood at GH¢55,558.54 which said amount the defendant has willfully refused or failed to pay despite persistent demands. The plaintiff contends that the defendant has evinced every intention not to repay the facility granted 1 to him by the plaintiff unless compelled by an order of this court hence the court action to recover same. Again, in its statement of claim the plaintiff stated in paragraph 8 that the defendant made his first payment on 23rd February, 2021 in breach of the terms of the loan facility hence it started attracting penalties accordingly. In paragraph 9 of the statement of claim it was stated that by 23rd March 2022 the defendant had made payments to the sum of GH¢29,355.00. Plaintiff stated further in paragraph 10 of the statement of claim that, the defendant having breached the payment schedule and terms and conditions attached to same as agreed between the parties the sum unpaid attracted the interest and penalty amounting to GH¢55,538.84. The defendant on his part, though admitted having applied for a loan of GH¢40,000.00 only GH¢33,200.00 was paid into his account and not GH¢40,000.00. On the whole the only issue to be determined by the court is: Whether or not plaintiff is entitled to its claims against defendant. The general position of the law on contracts is that contracting parties are bound by the terms of their contract freely entered into with the intention to be bound by the terms of their contract that is legally enforceable. For contracts to be enforceable the terms must be certain and must not be fraught with ambiguities. In the case of Republic VRS The High Court, Cape-Coast: Ex-parte, Ghana Cocoa Board (Apotoi III interested party [2009]SCGLR 603 AT 619 the Supreme Court speaking through Atuguba JSC held, “It is trite law that for a contract to be enforceable it must be certain at least as to its essential terms”. In modern times however, the courts have taken the stand that especially as where, there has been part performance, the agreement should survive as a contract but certainty of the contract is a logical and necessary requirement which has never been questioned. Again, in Koglex Ltd VRS Feld [1999-2000] 2 GLR, 437 SC, Walferd VRS Miles [1992]2 AC 128 are very instructive on the enforceability of a contract between contracting parties. In the instant case the defendant admitted having applied for GH¢40,000.00 but when the 2 loan was eventually disbursed, he only received GH¢33,200.00 in his account. According to the defendant, upon his own enquires he was then told that GH¢4,000.00 of the approved loan was deducted and deposited into an interest yielding fixed deposit to be held into as a lien/collateral for repayment of the loan approved. Defendant stated further that, GH¢2,800.00 was said to have been deducted as processing and insurance fee. Again, defendant stated that plaintiff deducted yet another GH¢500 from the approved sum and unilaterally acquired shares without the plaintiff’s instruction dividends therefrom to be used to retire part of the loan advanced bringing the amounts supposedly deducted from the approved loan to a total of GH¢7,300.00 from GH¢40,000.00 it will come to GH¢32,700.00 and not GH¢33,200.00 as the defendant stated. The total of GH¢7,300.00 which according to the defendant came to his attention upon his enquiry after GH¢33,200.00 was deposited into his account instead of the GH¢40,000.00 approved and therefore it is the defendant’s case that the actual amount disbursed into his account as loan by the plaintiff was GH¢33,200.00 and not GH¢40,000.00 and even with that, defendant in his defence stated that he has paid in excess of GH¢32,000.00 to the plaintiff and so does not owe the plaintiff up to the amount claimed. The defendant then again stated that, assuming without he admitting that he has since paid a total of GH¢29,355.00 as claimed by the plaintiff that GH¢29,355.00 when deducted from the GH¢32,700.00 would bring his debt liability to GH¢3,345.00 as at March 2022 the loan and loan balance after the supposed repayment totaling GH¢29,355.00 when applied to the amount disbursed gives a simple picture of one deducting GH¢29,355.00 from according to the defendant GH¢32,700.00 and not from the approved GH¢40,000.00 which in essence by a simple calculation would be as follows; 32,700-29,355 which answer is GH¢3,345. Now, granted that the defendant very simplistic view of accounting for the loan is correct as with the amount disbursed being GH¢32,700.00 over a period of 12 months commencing from 23/12/2020 to the maturity date of 23/12/2021, the total amount due by the date could not have remained GH¢32,700.00 which when one deducts GH¢29,355.00 would simply arrive at a total of GH¢3,345.00. This is because as the plaintiff put it, the loan was 3 disbursed with an interest of 4% per month making the rate for the 12 months period 48%. So, by a simple application 48% on the supposed GH¢32,700.00 one would have come to realise that the principal of GH¢32,700.00 at 48% per 12 months period would have come to 48% of GH¢32,700.00 which would be GH¢15,696.00 as interest and so when one put the principal of the supposed GH¢32,700.00 together with the expected interest of GH¢15,696.00 would have generated a total indebtedness of GH¢48,396.00 representing the principal and interest for the 12 months and so if one deducts the total payment of GH¢29,355.00 from the GH¢48,396.00 one would have had a total loan balance of GH¢19,041.00 and not GH¢3,345.00 as the defendant would want the court to believe. Now what is the real controversy and how must this controversy be resolved? The real controversy is on the amount of GH¢55,588.54 representing the loan balance as claimed by the plaintiff as the balance from the principal and interest accrued over the period of 15 months commencing from 23/12/2020 to 23/3/2022. From the records the writ in this case was filed on 4/4/2022 which to a large extent confirms that, the 23rd March 2022 remains the correct period the loan had existed between the parties. In his supplementary witness statement filed on 19/01/2023 plaintiff tendered in evidence exhibit A, B ,C and C1 being exhibit ‘A’ the loan application form, exhibit ‘B’ the facility offer letter, exhibit ‘C’ the statement of Account of Benjamin Boachie (defendant) and exhibit ‘C1” being a photograph of a cash withdrawal form on the face of exhibit C1, the cash withdrawal from, an amount of GH¢40,000.00 was debited to the account of the plaintiff and in favour of Benjamin Boachie which was dated 23/12/2020. On exhibit ‘C’ the statement of Account of the defendant, the Account had the deposit by transfer of GH¢40,000.00 with the narration as transfer of loan granted. What is more important is that the defendant by exhibit ‘B’ which is the facility offer letter accepted the offer of the facility with the terms and conditions clearly stated and in addition the defendant made his own declaration as follows” I Benjamin Boachie declare that, I have personally read the foregoing or have had them read and explained to me in a language that I understand and having had the opportunity of independent counsel, I hereby convey my acceptance of and agreement with ALL THE TERMS 4 AND CONDITIONS stated in this facility Agreement before making my mark below.” This was signed by the defendant and his guarantor one Patrick Mireku on 23rd December, 2020. What are the terms and conditions that the defendant by exhibit ‘B’ accepted and signed a declaration on? The terms and conditions which is captured on the face of exhibit ‘B’ reads as follows, “We are pleased to advise that the cooperative has approved your loan facility under the following terms and conditions 1. Principal amount : GH¢40,000.00 2. Purpose : To Augment your working capital 3. Interest Rate : 4% per month 4. Application and Processing fee : 5% of the principal 5. Insurance and commitment fee : 2% of the principal 6. Term of facility : 12 months 7. Expiry date : 23rd December, 2021 8. Repayment shall be made on weekly instalment of GH¢1,233.33 amounting to GH¢4,933.33 per month. 9. The monthly instalment of GH¢4,933.33 must be fully paid on or before the 23rd day of each month failure of which shall attract a penalty interest rate of 6% on the unpaid balance thus increasing the cost of the facility. 10. The loan shall be guaranteed by one acceptable guarantor who has shares with the cooperative. 11. Cash back of (GH¢5,000), your Building plot no. 52 block F sector 22 situate at West Bakoniaba Sunyani and all your business equipment registered in your name and or in the name of Expert Printing Press located in Sunyani in the Bono Region shall be used as a collateral for the facility”. For purposes of clarity I will present the above terms and conditions in a table form as in the tables below Table 1 Principal Interest 48% Total as at 23/12/21 GH¢ GH¢ 40,000.00 19,200.00 GH¢ 59,200.00 5 Table 2 59,200.00 Repayment 24,355.00 Balance 34,845.00 Table 3 34,845.00 5,000 (cash back) 29,845.00 Table 4 Table 5 29,845.00 31,635.7 Penalty 6% 1,790.7 5,000.00 Balance 31,635.7 25,635.7 Penalty for Jan, 2021 200.7 25,835.7 As at the time of filing this writ the total indebtedness of the defendant in accordance with the terms and conditions as captured on exhibit B stood at GH¢25,835.7 payable to the plaintiff cooperative society which so far has been proven by the plaintiff cooperative society. The allegation by the defendant to the effect that the plaintiff cooperative society approved a loan facility of GH¢40,00.00 but ended up disbursing only GH¢32,700.00 is unfounded as all the deductions being the processing fee of 5% which comes to GH¢2,000.00, insurance and commitment fee of 2% which comes to GH¢800.00 cash back of Gh¢5000.00 as collateral all totaling GH¢7,800.00 when taken from GH¢40,000.00 will bring the total amount left to GH¢32,200.00 but that is in complete accord with the terms and conditions of the loan which the defendant is bound by virtue of the contract freely entered into by the defendant and also guaranteed by the defendant guarantor one Patrick Mireku. From the evidence so far adduced, it is clear that the plaintiff cooperative society in fact did grant a loan facility of GH¢40,000.00 to the defendant who accepted the loan at the rate of 48% per annum and by the application of the rate and summation of the repayments by the defendant totaling GH¢29,355.00, the unpaid balance being the unpaid principal and interest as seen from the tables above it must be around GH¢25,835.7 plaintiff cooperative society is therefore entitled to cash the sum of GH¢25,835.7 and not GH¢55,558.00. judgment is therefore entered for plaintiff cooperative society for the 6 recovery of Gh¢25,835.7 with interest at 30% per annum from 30th April 2022 till final date of payment. No order as to cost. H/W ERIC DANING [MAGISTRATE] 7