ADJEI VRS GODWIN AND ANOTHER (A2/33/2024) [2024] GHADC 284 (8 May 2024)

IN THE DISTRICT COURT, EJISU, HELD ON 8TH MAY, 2024 BEFORE HER Formatted: Font: Palatino Linotype, 12 pt HONOUR (MRS.) ROSEMARY EDITH HAYFORD, (CIRCUIT COURT JUDGE) Formatted: Line spacing: 1.5 lines SITTING AS ADDITIONAL MAGISTRATE. __________________________________________________________________ SUIT NUMBER A2/33/2024 DANSO-BOAHEN ADJEI - PLAINTIFF (SUING UNDER THE NAME & STYLE OF DAN J. K. MICRO CREDIT ENTERPRISE OF KUMASI) V DONYO GODWIN & ANOTHER - DEFENDANT ……………………………………………………………………………………………………… ………………………. TIME: 10.05 AM PLAINTIFF DEFENDANT - PRESENT - ABSENT __________________________________________________________________ JUDGMENT By a writ of summons dated the 21st of December, 2023, and subsequently amended on the 26th of March, 2024, the Plaintiff instituted the instant suit against the Defendants for the following reliefs: 1 i. A declaration that a loan agreement existed between the Plaintiff and the Defendants dated 9th day of November, 2021 ii. Recovery of an amount of Eighty-four Thousand, Seven Hundred and Seventy-seven Ghana Cedis, Fifty Pesewas (Gh₵84,777.50) from the Defendant being the total amount Formatted: Font: (Default) Times New Roman, 12 pt of indebtedness and interest on same of the Defendant (sic) to the Plaintiff arising out of Formatted: Font: Palatino Linotype, 12 pt the loan agreement in paragraph (1) ALTERNATIVELY, TO RELIEF II iii. An Order for the Plaintiff to sell the collateral used by the Defendant to secure the loan being a Nissan Note with registration number WR-1260-18 to defray the Defendant’s indebtedness to the Plaintiff When the matter came on for trial on the 5th of February, 2024, the 1st defendant failed to appear in court to defend the action. The court having satisfied itself that due process had been followed and all the processes had been served on the 1st defendant, proceeded to hear the matter. In the cause of the trial the 2nd defendant was joined to the suit but she also failed to appear in court. It must be placed on record that the defendants failed to file any process despite being given the opportunity. It is trite learning that where a party is given the opportunity to be heard and he failed to take it, he cannot complain that he has not been heard or that there is breach of Natural Justice. THE PLAINTIFF’S CASE The Plaintiff, a registered lending sole proprietorship, on the 9th of November, 2021 lent Formatted: Line spacing: 1.5 lines an amount of Eighteen Thousand Ghana Cedis (GH₵18,000.00) to the 1st Defendant. Formatted: Font: (Default) Times New Roman, 12 pt According to the Plaintiff, it was agreed that the principal amount would be repaid Formatted: Font: Palatino Linotype, 12 pt together with a monthly interest of 5% by December, 2021. The said loan agreement attracted a penal charge of 10% monthly interest in default by the Defendant. The 2nd Defendant, the wife of the 1st Defendant signed a guarantee to redeem the 1st Defendant, 2 should he fail to pay. It is the Plaintiff’s case that the defendants have failed to honour the terms of the agreement despite repeated demands. According to the Plaintiff as at the time of the issuance of the writ the indebtedness of the defendants was Eighty-Four Thousand, Seven Hundred and Seventy-Seven Ghana Cedis, Fifty-Four Pesewas (GH₵84,777.50) inclusive of the interest and penalty thereon. At the end of the trial, the issue below was set down for determination Whether or not the Plaintiff is entitled to recover from the defendants Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: Palatino Linotype, 12 pt the total sum of GH₵84,777.50 being the total indebtedness (loan + interest + Formatted: Font: (Default) Times New Roman, 12 pt penalty) of the defendants. APPLICATION OF THE LAW Formatted: Font: Palatino Linotype, 12 pt Formatted: Line spacing: 1.5 lines In every civil suit the burden of persuasion and proof lies on the party who asserts the affirmative of his case and the standard of proof required of him is proof by a preponderance of probabilities as provided for under section 12 of the Evidence Act 1975 NRCD 323. Thus, the plaintiff who is making a claim against the defendant is required under section 11 (1) of the Evidence Act to lead sufficient evidence in proof of his case to compel a ruling in his favour. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of the burden on a party required to prove an issue asserted in his pleadings as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff 3 leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue.” EVALUATION OF THE EVIDENCE AND DECISION OF THE COURT Mr. Danso Boahen Adjei trading under the name and style of Dan JK Micro Credit Enterprise testified on behalf of the enterprise. He averred he is the Chief Executive Officer of the enterprise He tendered the Certificate of Registration as Exhibit “A”. He further tendered the Bank of Ghana Operating Licence as Exhibit “B”. The witness further stated that he was a member of the Micro Credit Association of Ghana. He tendered his membership certificate as Exhibit “C”. It is the case of the Plaintiff that the 1st Defendant applied for a loan facility on the 9th of November, 2021 for the sum of Twelve Thousand Ghana Cedis (GH₵12,000.00). Exhibit “D” was tendered as the first Formatted: Font: (Default) Times New Roman, 12 pt offer letter of the 1st Defendant. The money was accordingly disbursed to the 1st Formatted: Font: Palatino Linotype, 12 pt Defendant. The terms of the agreement was that the said loan was to attract an interest of 5% per month and a penalty rate of 10% per month if there was a default. The principal was to be repaid together with the interest within one month. However, according to the witness, on the due date for the repayment of the loan and interest on December 9, 2021 the 1st Defendant pleaded to pay only the interest and pay the principal the following month. Plaintiff says he agreed to same so the 1st Defendant paid only the interest of GH₵600.00. Subsequently, the 1st Defendant only paid the interest Formatted: Font: (Default) Times New Roman, 12 pt until the 7th of March 2022 when 1st Defendant further requested for a top up of Formatted: Font: Palatino Linotype, 12 pt GH₵6,000.00 to finish up a project with the assurance that he would pay both the Formatted: Font: (Default) Times New Roman, 12 pt principal and interest the subsequent month. This brought the total loan to Formatted: Font: Palatino Linotype, 12 pt GH₵18,000.00. The top up loan agreement was tendered as Exhibit “E”. The processing Formatted: Font: (Default) Times New Roman, 12 pt fee was 5%. Formatted: Font: Palatino Linotype, 12 pt 4 It is the case of the witness that both loan agreements were guaranteed by the 2nd Defendant, the wife of the 1st Defendant. The loan was also secured with a Nissan Note vehicle with registration number WR-1260-18. The Loan guarantee agreements were tendered as Exhibits “F” and “G” respectively. The 1st defendant only paid the interest on the principal sum of GH₵18,000.00 of GH₵900.00 from April 2022 through to July Formatted: Font: (Default) Times New Roman, 12 pt 2022 and then November, 2022. Since then the 1st Defendant has failed to pay both the Formatted: Font: Palatino Linotype, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt principal sum and the interest despite repeated demands and same has attracted the Formatted: Font: Palatino Linotype, 12 pt penalty of 10% upon each default. The Plaintiff tendered the 1st defendant’s statement of Account as Exhibit “H”. A screenshot copy of the Plaintiff’s whatsApp chat with the 1st defendant was also tendered as Exhibit “J”. It is to be noted that the above evidence by the Plaintiff was not challenged or contradicted by the defendants. This is because the defendants failed to appear in court to defend the action despite all the processes being served on them. The effect of the above unchallenged evidence of the Plaintiff is that the defendants acknowledge and admit same. In Quagraine V Adams [1981] GLR 599, CA, it was held that where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine. Keen Adrian (2008), in his book “The Modern Law of Evidence” (seventh Edition), Oxford, New York, 195, stated thus “A party’s failure to cross-examine, however, has important consequences. It amounts to a tacit acceptance of the witness’s evidence in chief. A party who has failed to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict his evidence-in-chief or 5 impeach his credibility by calling other witnesses, will not be permitted to invite the jury or tribunal of fact to disbelieve the witness’s evidence on that matter.” In TAKORADI FLOUR MILLS VRS SAMIR (2005-2006) SCGLR 882, it was held that “in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court”. See also IBRAHIM VRS ABUBAKARI (2001-2001)1 GLR 540 In the instant case, the defendants were given the opportunity to be heard but they failed to appear in court. Therefore, they cannot say that the audi alteram pattem rule has been breached. It is trite that where a party is given the opportunity to be heard and he fails to take it, he cannot complain that he has not been heard or there is a breach of any rule of natural justice. From Exhibits “A” and “C” it is not in doubt that the business is a registered entity and that it has obtained a licence from Bank of Ghana to operate as a micro credit enterprise. Exhibits D and E are “Credit Facility” letters dated November 9, 2021 and March 7, 2022 for GH₵12,000.00 and GH₵6,000.00 respectively. On these documents the terms of Formatted: Font: (Default) Times New Roman, 12 pt the agreement averred by the Plaintiff in his evidence are captured on them. There is Formatted: Font: Palatino Linotype, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt the signature of the Plaintiff as the CEO and an “ACCEPTANCE” portion with the Formatted: Font: Palatino Linotype, 12 pt following stated on same “I Donyo Godwin accept the above with the terms and conditions stated therein NAME: Donyo Godwin SIGNATURE: signed DATE: 9/11/2021” 6 On Exhibit “E” the same inscriptions are contained therein however the date captured on it is 7/3/2022. And what were these terms? To pay interest of 5% monthly on the principal and also pay a penalty of 10% per month if there is a default. From the evidence it can be seen that the Defendant along the line failed to comply with the terms to pay the principal and interest thus the 10% penalty kicked in from the date of default that is December 2021 till the date the writ was issued on 21 of December 2023, thus the total amount being claimed on the writ. It is to be noted that all the loan agreements were guaranteed by 2nd defendant as can be seen from Exhibits “F” and “G”. Part of the said exhibits reads as follows: “I/We Jennifer Azamati Esinana……..in consideration of your granting to Godwin Donyo…a loan facility of twelve Thousand Ghana Cedis for working capital unconditionally guarantee the due payment of all monies payable under the facility and will pay to you immediately on demand any money so payable. I/We further agree that this guarantee shall not be affected by any time or other indulgence which you may see fit to grant to the principal Signature and Seal: signed” The above is the same on Exhibit “G” except the loan sum here is GH₵6,000.00 Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: Palatino Linotype, 12 pt It is the case of the Plaintiff that all efforts to get the guarantor to also pay the sum outstanding have also failed. Hence the Plaintiff has prayed for an order for the sale of the Nissan Note vehicle with registration number WR-1260-18 used to secure the loan. The strong documentary evidence presented by the Plaintiff cannot be overlooked and I do not see why this action should not succeed. I find from Exhibits D and E that a loan 7 agreement existed between the parties. I further find that the 1st Defendant accepted all the terms and condition of the said loan agreement and is therefore bound by them. Equally from Exhibit G, I find that since the 1st Defendant defaulted with the repayment of the loan facility and interest, 2nd defendant ought to have paid for same as guaranteed but she has also failed to do. I have considered the facts and evidence adduced so far by the Plaintiff and it is my considered view that the evidence of the Plaintiff is credible, accordingly the action must succeed. I therefore enter judgement in favour of the plaintiff in the sum of Eighty Four Thousand, Seven Hundred and Seventy Seven Ghana Cedis (GH₵84,777.50) being Formatted: Font: (Default) Times New Roman, 12 pt the Defendants total indebtedness (loan + interest + penalty) same arising from the loan Formatted: Font: Palatino Linotype, 12 pt agreement since November 2021. It is hereby ordered that the collateral (Nissan Note vehicle with registration number WR-1260-18) used to secure the loan be sold to defray the total debt of the defendants. I award cost of GH₵5,000.00 in favour of the Plaintiff. Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: Palatino Linotype, 12 pt H/H ROSEMARY EDITH HAYFORD (MRS.) Formatted: Line spacing: 1.5 lines CIRCUIT COURT JUDGE (SITTING AS ADDITIONAL MAGISTRATE) 8