Weto Rural Bank Ltd Vrs Ankutse & Another [2023] GHAHC 253 (16 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO - VOLTA REGION CORAM: H/L JUSTICE YAW OWOAHENE-ACHEAMPONG, J. SUIT NO: E2/58/2012 16TH MARCH, 2023 : PLAINTIFF WETO RURAL BANK LTD. Kpeve VERSUS:- 1. CHRISITINE ANKUTSE 2. CECILIA ADDAE Representing Tornyeli Community Women Development Association, Agate : DEFENDANTS INTRODUCTION JUDGMENT The plaintiff issued out the instant action originally on 4-6-2012 and per their amended statement of claim dated 27-1-2016, the plaintiff sought against the defendants the following reliefs: a. Refund or recovery of a liquidated amount of GH₵6,430.00 the outstanding amount the defendants owe plaintiff as at September. b. Interest on GH₵6,439.00 from September, 2009 to date of final judgment at 30% per annum. c. General damages. The Plaintiff's Case The case of the plaintiff as gleaned from the amended statement of claim and witness statement is that, around 23rd of June, 2006 the defendants in their respective capacities applied for a loan of GH₵6,900 from the Plaintiff Bank on behalf of Tornyeli Community Women Development Association, Agate. The purpose of the loan was to enable the Women Association to cultivate cassava on a parcel of land at Agate. That after scrutinizing the loan application an amount of GH₵6,000.00 was approved after it was agreed that the said GH₵6,000.00 was to be disbursed according to a specified tranches. The plaintiff disbursed the 1st tranche of GH₵2,100.00 to the group on 13th July, 2006. The plaintiff's case is that on 8th August, 2006, when the Defendants caused the 2nd tranche of GH₵3,900.00 to be credited to their group's account, the group had not completed the 1st phase of the project. According to the plaintiff this constituted the violation or breach of the agreement between the parties herein. The plaintiff claimed that before it could debit the group's account with GH₵3,900.00 it had earlier on credited the group with, the 1st defendant had withdrawn GH₵3,200 out of the GH₵6,000.00 plaintiff had approved for the group. The plaintiff claimed that in the face of non-compliance with the terms of the loan, the plaintiff debited the group’s account with the loan balance of GH₵2,800.00 on 21st August, 2006. The plaintiff claimed that when it requested the account from the defendant covering the use of the loan granted them they fraudulently stated that they spent an amount of GH₵160.00 on the acquisition and registration of the land when in truth and in fact the land in question was and is still the bonafide property of Kludjeson Farms Ltd. According to the plaintiff, the defendants perpetuated fraud, when the defendants falsely claimed that they had acquired and registered the piece of land belonging to Kludjeson Farms Ltd. The plaintiff therefore claimed against the defendants as per the endorsement on the writ of summons. The Defendant's Case: The defendant denied the claims of the plaintiff through their amended statement of defence and counterclaim filed on 22-7-2016 and witness statement. The defendants averred that they applied for a loan facility of GH₵12,000.00 only but not GH₵6,900.00 as the plaintiff claimed. The plaintiff instead granted the Association a paltry sum of GH₵6,000.00. The defendants' case was that the loan was required purposely for farming at Yordan-Nu where the plaintiff's Project Officer came to inspect the defendants' site before the grant of the said loan. It is the case of the defendants that once that loan was granted to their Association after due diligence was done by the plaintiff bank the defendants were at liberty to withdraw their loan anytime from their account without permission from the plaintiff. The defendants' case is that when they decided to withdraw an amount of GH₵2,100.00 out of the said GH₵6,000.00 so granted, that same day the plaintiff took an amount of GH₵1,050.00 as commitment fee from the said amount. The case of the defendants further is that on 8th August, 2006, the plaintiff credited the defendants' account with GH₵3,900.00 but the same plaintiff again took GH₵1,950.00 as commitment fee. So the net effect was that the plaintiff took a total sum of GH₵3,000.00 as commitment fee from the loan facility of GH₵6,000.00 loan granted to the Association. The defendants’ case is that they took only GH₵2,000.00 from the only GH₵3,000.00 available to the Association as a result of the plaintiff's own deduction of commitment fee of GH₵3,000.00 from the loan it granted to the defendants. The defendants' case is that the loan repayment period was 2 years from July, 2006 to July 2008. But the plaintiff without any recourse to the defendants unilaterally reversed the loan so granted to the defendants by debiting the Association's account with GH₵2,800, leaving a balance of GH₵84.89 pesewas only. The defendants therefore say that the plaintiff's failure to grant the requisite loan to the defendants and subsequent withdrawal of the remaining loan balance from the Association account without recourse to the defendants had led to the failure of the cassava project and subsequent collapse of the onetime vibrant women group. Defendants' case is that the plaintiff breached its side of the contract which resulted in the farm being overtaken by weeds, pests, and rodents. Subsequently the farm was gutted down by fire as a result of lack of funds to weed around to create fire-belts to save the farm. As a result of the withdrawal or reversal of the loan balance the defendants' farming project failed, and same was destroyed by fire, thereby jeopardizing the livelihoods of the Association members, the Association is in debt and subsequently collapsed. From all the above, the defendants say that the plaintiff is not entitled to the reliefs they claim, rather, the defendants hereby counter-claim against the plaintiff as follows: a. Plaintiff's actions and inactions frustrated the contract between the parties leading to loss of their farms and thereby making the Association indebted to Gratis - Ho. b. Special damages of GH₵6,000.00 for frustrating the contract between the parties hereby denying them their envisaged profit from the farm. c. Recovery of an amount of GH₵3,000.00 at the time being the value of the equipment seized by GRATIS - Ho for failure to pay its equipment balance of GH₵1,700.00. This recovery must be done with interest. d. An order for recovery of an amount of GH₵2,800.00 being outstanding money detained by the Plaintiff in its accounts up to date. This amount shall be recovered at a 30% percent interest rate. e. An order for a special damages of GH₵150,000.00 for collapsing a whole community business which is heavily depended upon by the members of the Association, their dependents, various community trainee from 2016 up to date. f. An order of damages for psychological trauma, resulting in sickness of some members, death and destruction of goodwill etc. g. General damages as the Court pleases. h. Legal fees as cost. It is trite learning that the instant action being a liquidated claim, the standard of proof is proof by preponderance on probabilities. “The standard of proof of allegations in civil cases is proof by the preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt”. See: Aryeh Akakpo v. Yaa Iddrisu [2010] SCGLR 891 Fenuku v. John Teye [2001-2002] SCGLR 985 Please see section 12 (1) & (2) of the Evidence Act, 1973 (NRCD 323). The Burden of Proof. It is a fundamental principle of law that a party who bears the burden of proof is to produce the required evidence on the facts in issue that has the quality of credibility, short of which his claim may fail. It is also trite learning that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. The case of Ackah v. Pergah Transport Ltd & Ors. [2010] SCGLR 728@736, refers. See also sections 10 (1) & (2) & 11 (1) & (4) of NRCD 323, supra It must however be borne in mind that the burden of proof may shift from the party who carried the primary duty to the other party. Please see section 14 of NRCD 323 supra. In the instant matter it is instructive to take note that the defendants have entered a counterclaim. I think it is a common legal knowledge: “the rule is that a defendant’s counterclaim is in essence treated in the same way as the plaintiff’s claim. The rules are reversed and the defendant (as the plaintiff in the counterclaim) assumes the burden to prove his or case. In the instant case, the burden of proof rested on the plaintiff to prove their case but on the counterclaim, it was the defendants’ responsibility to prove their case”. See the case of In Re Will of Bremansu: Akonu- Baffoe & Ors v. Buaku & Vandyke (substituted by Bremansu [2012] 2SCGLR 1313 @1320. It was also held thus; “Relating the case cited, supra to the case under consideration, the respondent has counterclaimed and that meant that he assumed the position of the plaintiff in respect of his counterclaim”. See Oblie & 2 Ors v. Lancaster [2014] 73 G. M. J 140 @145. EVALUATION OF THE EVIDENCE ON RECORD. From the available evidence on record, l find it as an uncontroverted fact that the loan facility granted the defendants was in the nature of a group loan distinguishable from personal loan. This piece of evidence was contained in exhibit WB2 which was attached to the supplementary witness statement of David Yao Kludze for and on behalf the plaintiff bank and filed on 16/1/2011. On exhibit WB2, the following information has been provided: “i. Heading: GROUP LOAN APPLICATION FORM. ii. Name of Group: Tonyeli Community Women Dev’t Association. iii. Proposed Security: Group Guarantee”. Apart from exhibit WB2, supra which indicates that the loan facility to the defendants was a group loan, the defendants also per the witness statement of Christine Ankutse (the 1st defendant) for and on behalf of the defendants on 20/8/2015 filed and attached as exhibit CA6 (sic) the Account Statement of the defendants at the plaintiff bank with the following inscription: i. “ACCOUNT Number: S/A- 3898 ii. Name: Group……………………………………………………….. TORNYELI WOMEN C0MMUNITY DEV’T ASSOCIATION.’’ It is very instructive to take note of what transpired at the trial when Daniel Yao Kluste who testified as PW1 on 02/11/2017. And for the avoidance of doubt, l wish to quote verbatim the following testimony of PW1 when he was cross-examined by counsel for the defendants: “Q. Was the loan granted to the group or individuals in the group? A. It was individuals in the group, so the executive board was to disburse the monies to the individuals. Q. Our exhibit CA6 is in whose name? A. In Tonyeli Women Development Association. Q. So the loan was to the group and not the individuals? A. It is. If you look at the application they submitted, individuals requested the money so all the individual members thump printed the application. Q. I put it to you that you did not grant loan to individuals but the Toryeli (sis) A. It was to the individuals in the group”. From the foregoing encounter, it is observed the PW1 was trying to be evasive to the questions asked by counsel for the plaintiff. This is because, despite overwhelming evidence on record that the loan facility granted the defendants was a group loan, PW1 tried in vain to convince the court that the loan facility granted the defendants was a personal loan. I therefore find it very spurious and very difficult to comprehend why the plaintiff decided to sue the defendants in their personal and individual capacities. From the above, l hold a respectful opinion that the defendants have been sued in wrongful capacities and therefore the action against the defendants is hereby dismissed as lacking merits. The instant action having been dismissed against the defendants on grounds of wrongful capacity, the counterclaim of the defendants against the plaintiff is also dismissed as unfounded. On record, the plaintiff chose to abandon their case since 24/06/2019. That notwithstanding, on 02/03/2020, the court ceased the occasion to give a strong warning to the plaintiff not to take the court for a joke and yet the plaintiff failed or refused to take the matter serious. On record, this case suffered several adjournment, largely due to the attitude of the plaintiff who mounted this action against the defendants. The attitude of the plaintiff is unacceptable, this case having spent well over ten (10) years before this court. From all the above l think that the defendants deserve substantial costs against the plaintiff. Even though counsel for the defendants has asked for One Million Ghana Cedis as costs against the plaintiff, taking into consideration the long delay on the part of the plaintiff, costs against the plaintiff are assessed at Thirty Thousand Ghana Cedis in favour of the defendants including counsel’s legal fees. The plaintiff’s action fails in limine. The counterclaim of the defendants also fails. (SGD.) H/L JUSTICE YAW OWOAHENE-ACHEAMPONG JUSTICE OF THE HIGH COURT. COUNSEL V. K. GBLORKPOR FOR PLAINTIFF S. S. AGBEEHIA FOR DEFENDANTS