Tamale Community Co-op. Credit Union Ltd Vrs Humaiza [2023] GHADC 495 (6 April 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 6TH APRIL, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A2/41/23 TAMALE COMMUNITY CO-OP. CREDIT UNION LTD. - PLAINTIFF AND ALI HUMAIZA DEFENDANT - JUDGMENT INTRODUCTION 1. This judgment relates to recovery of loan. 2. The plaintiff is a credit union and it instituted this action through its Manager, Mr. Emmanuel Amoka Akaare. The defendant is described as an beneficiary of a loan facility from the plaintiff. On 23th January, 2023 the plaintiff took out a writ of summons against the defendant for the following reliefs: - 1 - a. Recovery of the sum of GHS8,449.28 being the defendant’s total indebtedness to plaintiff as at 10th December, 2022 to which defendant has failed, refused or neglected to pay in spite of several demands. d. Costs. 3. On 14th February, 2023 the defendant pleaded not liable to plaintiff’s claim saying that the money she took was not a loan but a facility granted her by an NGO. The parties were encouraged to settle, but they returned that they were unable to settle. Plaintiff filed a witness statement together with exhibits and the defendant was heard viva- voce. 4. The respective cases of the parties herein are detailed below. PLAINTIFF’S CASE 5. Plaintiff’s witness, Mr. Akaare, testified to the effect that the defendant took a loan of GHS6,145.00 since 10th December, 2020 and was to complete payment on 10th December, 2022. Plaintiff stated further that the defendant has only paid GHS364.00 out of the total debt leaving the debt of GHS8,449.28 as at 10th December, 2022. Plaintiff contended that the loan was granted to the defendant under a German Sparkassen Foundation for International Cooperation (DSIK) programme in collaboration with African Development Organisation for Migration (AFDOM). Plaintiff explained that the programme is aimed at minimizing all forms of migration particularly within the newly created regions of Ghana. Thus, the programme trains, coaches and supports participants from moving out of their regions. The participants who were found to eligible to have their own businesses are then granted loans and to pay back the loan under a flexible system. Hence, the plaintiff was to help with the Northern Region sector in giving out the said loans. According to plaintiff, it as a result of this - 2 - programme that the defendant qualified for a loan facility. Plaintiff maintained that the defendant being well aware that it was a loan and had even made some payments now has assumed not pay the debt unless compelled by this court. Plaintiff tendered in evidence the below exhibits (in ascending order as to the date it was executed): Exhibit F – Loan Appraisal Form dated 31/08/20. Exhibits G and G1 – Loan facility authorized under the programme for the defendant Exhibit B – Loan Application for GHS6,145.00 by defendant dated 8/10/20 Exhibit A – Credit Risk Management Assessment: Short Application by defendant dated 8/10/20 Exhibit C – Loan Agreement and Acceptance Form for the defendant dated 8/10/20 Exhibit D – Loan Repayment Schedule for the Defendant. Exhibit E – Loan Repayment made by the defendant as at 14/02/23 DEFENDANT’S CASE 6. Defendant in her defence simply stated, “I did not borrow any money from the plaintiff’s co-operative. That is all.” ISSUES FOR DETERMINATION 7. The only issue borne out of the facts is whether or not the defendant took a loan from the plaintiff? BURDEN OF PROOF 8. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and - 3 - In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “…each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323. 9. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v Akwasi III [1995-1996] GBR 774. ANALYSIS OF THE ISSUE 10. The only issue for determination is whether or not the defendant took a loan from the plaintiff? It is trite law that parties are bound by their agreement, as long as the agreement is not contrary to law. In the case, Oppong v Anarfi [2011] 2 SCGLR 556, the Supreme Court held that a person of full age and understanding is bound by his signature. The court stated: “It is therefore settled that a party of full age and understanding would normally be bound by his signature whether he reads, understands it or not particularly in the absence of the requisite evidence that the other party misled him.” 11. In the case, Amankwanor v Asare [1966] GLR 598, the court held that, “when an illiterate executes a document, there is no presumption that he has appreciated the meaning and effect of it. The onus of proving that he has appreciated the meaning and effect of the document is upon the party seeking to bind the illiterate to the terms of the document. Since the plaintiff’s first witness was admittedly illiterate, to bind him with exhibit A, a document obviously prepared in the English language, the onus - 4 - lay upon the defendant to establish that it had in fact been properly explained and interpreted to him so as to make him understand its real import.” The court in Zabrama v Segbedzi [1991] 2 GLR 221 also held that, “If after assessing all the available evidence it was satisfied, upon the preponderance of the evidence, that the document was read and explained to the illiterate person, then the burden of proof would have been discharged by the person relying on the document. That was because, just as it was bad to hold an illiterate to a bargain he would otherwise not have entered into if he fully appreciated it, so also was it equally bad to permit a person to avoid a bargain properly and voluntarily entered into by him under the guise of illiteracy.” In Doudo v Adomako & Anor. [2012] 1 SCGLR 198, the Supreme Court held that, “the law will not allow a party to use his illiteracy as a cloak to perpetuate fraud, if he fully appreciated the contents of a document before executing it.” 12. From the evidence, plaintiff maintained the defendant is well aware that the money was a loan and not a grant. Plaintiff witness explained that the loan documents were explained to the defendant in Dagbani language before she appended her signature. Plaintiff added that the defendant was paying for the loan until she met one Sadia Mohammed who influenced defendant not to continue with the payments. Defendant contended that she did sign documents. However, to her, the money she took was a grant but not a loan. Below is an extract of defendant being cross-examined: “Q: On 8/10/20 you came to our office to apply for a loan, you were assisted by Zakaria Ibrahim Alhassan, not so? A: I was not asked to fill a form, the said Zakaria gave me Exhibit A to sign. Q: On that day, you were granted a loan of GHS6,145.00? - 5 - A: That was the amount the NGO gave me. Q: You completed a loan agreement and acceptance form on that day, Exhibit C? A: I cannot remember taking a loan. Q: In fact, you have commenced repayment of the said loan through MTN Mobile Money? A: I was only depositing that money into my account. …. Q: The GHS90.00 you were transferring weekly, you withdrew same in paying the loan? A: I am not aware. Q: In my conversation with you when you had stopped paying for the loan you enquired from me whether I had spoken to Sadia Mohammed? A: That is not true. Q: I am putting it to you that it was Sadia Mohammed, the defendant in the other case, told you not to pay the loan? That is not true. A: … - 6 - Q: I am further suggesting to you that you came to the office with your sister Yussif Sarifa to take a loan? She only led me to your office. Sarifa was explained to before signing as a witness to you taking the laon? A: … Q: A: That is not true. Q: It was explained to you in both Dagbani and English that you were taking a loan? A: That is not true” 13. At this moment, it is important to point out that other individuals who had been sued by the plaintiff have testified to this court that the facility was a loan and not a grant. In the referred case of Sadia Mohammed, this court in seeking clarity from Mr. Mukala Aminu, the Director of AFDOM was informed that the monies given to the applicants under the programme were loans to be repaid at an interest rate determined by the credit union. 14. From the evidence in this case, I find that not only did the defendant take the loan, but was made to open an account to put money into same for the repayment of the loan, see Exhibit E. To me, there is no doubt that the defendant took the facility as a grant. The details of the loan were explained to her in the presence of a witness she took to the plaintiff’s office. Moreso, the amount she was paying into her account were intended to pay the loan. However, when asked about the account details and booklet, - 7 - defendant retorted that she cannot remember and also that the booklet cannot be traced because she has moved to her husband’s house. 15. On the totality of the evidence, I find that the plaintiff has led sufficient evidence in proof that the defendant understood the nature of the transaction before appending her signature. The law will, therefore, not allow the defendant to rely on her illiteracy as a cloak to avoid liability, see Doudo v Adomako & Anor. (supra). In brief, I find that the defendant took the GHS6,145.00 as a loan and I so hold. She has so far, per Exhibit E, paid GHS364.00. The total debt as at 10th December, 2022 stood at GHS8,449.28. 16. Regarding the interest to be paid, in Butt v Chapel Hill Properties [2003-2004] 1 SCGLR 626 the Supreme Court had this to say - “Once the court holds that there was an implied loan transaction between the plaintiff and defendants, the court is obliged to exercise its statutory authority to award interest on the loan implied in order to preserve the value of the capital... The justice of this case requires that interest should be awarded to plaintiff, even if not expressly claimed…” 17. From the evidence, the interest stated on Exhibit E reads 3% per month. In effect, the said interest (at 36% per annum) shall be applicable from 10th December, 2020 till date of final payment. The plaintiff shall maintain the Reducing Principal Balance Method with regard to the repayment. CONCLUSION 18. In effect, I hereby enter judgment in favour of the plaintiff for the following: - 8 - a. Recovery the amount of GHS8,449.28 given to the defendant as a loan facility from 10th December, 2022. b. The defendant to pay interest on the said amount at the rate of 36% on Reducing Principal Balance Method from 10th December, 2022 till date of final payment. c. Costs assessed at GHS1,000.00. H/W D. ANNAN ESQ. [MAGISTRATE] References: 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323) 2. Faibi v State Hotels Corporation [1968] GLR 471 3. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 4. Ababio v Akwasi III [1995-1996] GBR 774 5. Oppong v Anarfi [2011] 2 SCGLR 556 6. Amankwanor v Asare [1966] GLR 598 7. Zabrama v Segbedzi [1991] 2 GLR 221 8. Doudo v Adomako & Anor. [2012] 1 SCGLR 198 9. Butt v Chapel Hill Properties [2003-2004] 1 SCGLR 626 - 9 -