AMADU VRS PHANUEL (A2/18/2023) [2024] GHADC 322 (15 March 2024)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON FRIDAY THE 15TH DAY OF MARCH, 2024. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) THE DISTRICT MAGISTRATE SUIT NO:A2/18/2023 TRUSTWORTHY CO-OPERATIVE CREDIT UNION LIMITED PER THE MANAGER, IBRAHIM AMADU OF ADIDOME:...........PLAINTIFF VRS. AMUZU PHANUEL OF ADIDOME :........................DEFENDANT PARTIES 1 . PLAINTIFF PRESENT. 2 . DEFENDANT PRESENT. J U D G M E N T The Plaintiff instituted the instant action against the Defendant for the recovery of unpaid principal and accrued interest of Three Thousand Nine Hundred and Seven Ghana Cedis, Ninety-Eight Ghana pesewas (GH₵3,907.98) and costs. The Plaintiff in his summary of subject matter averred that the Defendant is a customer and operates a membership and susu account with the Plaintiff’s institution. That on the 20th day of February, 2018, the Defendant made a request for financial assistance of Fourteen Thousand, Two Hundred Ghana Cedis (GH₵14,200.00) from the Plaintiff’s institution of which part payment of Ten Thousand Seven Hundred and Thirty Ghana Cedis (GH₵10,730.00) was made. The outstanding amount owed by the Defendant as at 23rd April, 2023 stood at Three Thousand, Nine Hundred and Seven Ghana Cedis Ninety-Eight Ghana pesewas, (GH₵3,907.98) made up of unpaid principal of Three Thousand Four Hundred and Seventy Ghana Cedis (GH₵3,470.00) 2 and the accrued interest of Four Hundred and Thirty-Seven Ghana Cedis, Ninety-Eight Ghana pesewas (GH₵437.98). That despite repeated demands, the Defendant failed to pay same, hence this action. The Defendant pleaded LIABLE to One Thousand Ghana Cedis (GH₵1,000.00) and the remaining amount of Two Thousand Nine Hundred and Seven Ghana Cedis Ninety- Eight Ghana pesewas (GH₵2,907.98) tabled down for trial. The Defendant denial set down the matter for trial. The issues to be determined: (i) whether or not the parties entered into a contract or whether their conduct constituted a contract; and (ii) whether or not the Plaintiff can recover Two Thousand Nine Hundred and Seven Ghana Cedis, Ninety-Eight Ghana pesewas (GH₵2,907.98) from the Defendant. The standard of proof in civil matters is stated in the Evidence Act, 1975 (NRCD 323) to be proof on the preponderance of probabilities. It is trite learning that a party who asserts the occurrence and or the existence of a state of affairs has the burden of proof on that assertion and must adduce enough evidence to avoid a ruling against him on that matter. In Abbey v. Antwi [2010] SC GLR 16 at 19 Holding 2 where it was held: “It was trite that where a party makes an assertion capable of proof in a 3 certain way eg.............................................by producing documents, description of things reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness, he proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. See also Majolagbe v. Larbi & Others [1959] GLR 190. Similarly, in Sarkodie v. FKA Co.Ltd [2009] SC GLR 65,where the court stated with approval, the relevant portions of the Evidence Act, 1975 (NRCD 323) as follows: “It is also provided in the Evidence Decree 1975 (NRCD 323) Section 11 and 12 as follows: “11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. “12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities”. “12 (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. It is obvious from the foregoing that the Plaintiff herein has the burden of proof on the balance of probabilities to prove his claim. It is however trite that when the Plaintiff has successfully established his case, that is the Plaintiff has successfully discharged the burden of 4 persuasion, the burden will therefore shift to the Defendant to produce evidence to establish the rebutted version of the plaintiff’s case. The Plaintiff having assumed this burden, did not call any witness except his Witness Statement. He filed some Exhibits and same admitted. They include, Loan Processing Form filed on the 8th of January, 2018, CUA Risk Management Programme, Loan Repayment Schedule, Statement- Loans, Warning and final warning Letters. They were marked as Exhibit ‘A’ ‘B’ ‘C’ ‘D’ and ‘E’ respectively. The Defendant filed his Witness Statement and did not call any witness. He equally filed some Exhibits and same admitted marked as Exhibit ‘1’ ‘2’ ‘3’ ‘4’ ‘5’ ‘5A’ ‘5B’ ‘5C’ ‘6’ ‘6A’ ‘6B’ ‘6C ‘6D’ and ‘6E’ They were Passbook Receipt, Payment Voucher Savings and Loans Chart. The Plaintiff in his evidence on oath stated that on the 8th of January 2018, the Defendant applied for a loan facility from Trustworthy Co-operative and Susu Credit Union of Adidome where he is the Manager and the Defendant, a customer. The loan form was received on the 11th of February 2018 and subsequently the loan granted on the 20th of February 2018, an amount of Fourteen Thousand Two Hundred Ghana Cedis (GH₵14,200.00) having followed due process. This was for a two and half year duration expiring on or before the 20th of August 2020 with a 3% monthly interest rate. According to the Plaintiff, the repayment period elapsed and Defendant failed to settle his indebtedness of Three Thousand Nine Hundred and Seven Ghana cedis, Ninety- Eight Ghana pesewas (GH₵3,907.98) despite notices dated 9th February 2023 and 13th March, 2023 respectively. 5 Further, that the court should compel the Defendant to pay forthwith the outstanding amount owed the credit union as endorsed on the Writ of Summons with interest on the said amount calculated in accordance with agreement dated the 20th of February, 2018. That the non payment of the loan has incurred a heavy financial loss to the union. He was cross examined after his evidence by the Defendant and this closed his case. The Defendant opened his defence and stated that he applied for a loan and same granted on the 20th of February, 2018. That he is a shareholder in Plaintiff’s institution and has a passbook with number 1819 where contributions, collections, dividends and other monies due him both in credit and debit are recorded. This qualified him and as such he took a loan facility. According to the Defendant, he has made some payments which did not reflect in his passbook and that per Exhibit ‘D’ and ‘DI’, he made a total payment of Three Thousand Nine Hundred Ghana Cedis (GH₵3,900.00) which did not reflect in his account as paid even though the Plaintiff received same. That Plaintiff’s claim be dismissed. The Plaintiff cross examined him after his evidence and this closed his case. In resolving the issue of whether or not the conduct of the Defendant and the Plaintiff constituted a contract, Christine Dowuona-Hammond on Law of Contract in Ghana (2016) page 1 states: “The term contract is often used to refer to an agreement, consisting of the exchanges of promises, which is recognized by law as giving rise to enforceable rights and obligations.” 6 This is a matter between a customer of a Credit Union who by their operations qualified him to contract loan in the establishment or institution. The acquisition of loan facility, thus a core mandate of the Credit Union, as interest paid on such credit facility is funneled back into business operations, paid to members as dividend etc. It’s operations well documented for easy access to its clients who basically are the members whose deposits are pulled for the sustenance of its operations. Though a non-profit organization, but it has to carry out prudent business to generate income for its members who are shareholders. A self-help co-operative whose members can borrow from pooled deposits at low interest rates. As a financial institution then it gives out loans as an income generating activity with a formal procedure acceptable by its operations. This becomes binding on all seeking this credit facility. The parties herein are not exempted. The Defendant applied for loan from the Plaintiff’s institution and by operation filled Exhibit ‘A’ on the 8th of January, 2018 duly endorsed by his guarantors for an amount of Fourteen Thousand, Two Hundred Ghana Cedis (GH₵14,200.00) to acquire a Hyundai H200 Urvan Bus. Subsequently, the loan was approved with all the conditions as required in loan acquisition in the establishment on the 20th of February, 2018. A condition the Defendant readily accepted together with a CUA Risk Management Programme, a loan policy cover application (Health Declaration) form Exhibit ‘B’ and commenced the usage of the credit facility. The agreement was formal and therefore valid. 7 The Defendant is a driver who applied for the loan facility to purchase a vehicle for commercial purpose. He made a promise to the Plaintiff’s institution which took the form of an offer to apply for the loan to facilitate a purchase of a vehicle to aid his business. This was made as an indication of their willingness to contract with intention that it will become binding as soon as it is accepted, the case of Dormenyor v. Johnson Motors Ltd [1989-90] 2 GLR 145. Date – Bah JSC (as he then was) in the case of NTHC v. Antwi [2009] SC GLR 117 defined an offer as an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those”. The Plaintiff’s institution in accepting the offer approved the loan having endorsed his part of the bargain. The Defendant accepted as there wasn’t any contrary view on record. The inference here is that there was a contract as parties agreed on the terms which constitute offer and acceptance with the mutual intention that it should be binding and enforceable at law, the case of Kobaku & Associate v. Owusu [2006] 2 MLRG 228, CA. Similarly, in the case of NTHC v. Yaw Antwi [2009]24 MLRG 63 SC. held that “the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it together with an intention to create legal relations”. In the instant case, the Plaintiff tendered in evidence Exhibits ‘A’ and ‘B’. The Loan Processing Form and the Loan Policy Cover Application (Health Declaration) Form which the parties committed themselves to 8 it. The Defendant tendered Exhibit ‘1’ to show his membership, a Passbook No. 1001819. On the strength of the cases supra, there is sufficient evidence to prove that the parties conduct constituted a contract. On the issue of recovery of the outstanding amount of Two Thousand Nine Hundred Ghana Cedis, Ninety-Eight Ghana pesewas (GH₵2,907.98), the Defendant filed Exhibits in support of his case. Exhibit ‘2’ ‘2A’ ‘4’ ‘6’ ‘6A’ ‘6B ‘6C’ ‘6D’ ‘6E’ all those Exhibits are Receipts captured payment of loan and interest at different dates and with different amounts or face value. The amounts range from GH₵500.00, GH₵500.00, GH₵100.00, GH₵300.00, GH₵1,000.00, GH₵400.00, GH₵400.00 GH₵300.00 GH₵500.00. All these amounts were received by the Plaintiff’s institution and same evidenced in their statement of loan, Exhibit ‘D’ and same confirmed during cross examination. This is what ensued: Q: So per Exhibit ‘4’ what happened to my payment? A: It was duly acknowledged and duly credited. Q: On the 3rd of April 2023, I paid GH₵500.00, the original copy I cannot find but I have the photocopy as Exhibit ‘6E’ A: Same confirmed and credited. On Exhibit ‘C’ captured the loan information with the payment plan and schedule. The loan was contracted on the 20th of February, 2018 an amount of Fourteen Thousand Two Hundred Ghana Cedis (GH₵14,200.00) for a Thirty month duration at a rate of 3% interest on reducing balance totaling Six Thousand Six Hundred and Three Ghana 9 Cedis (GH₵6,603.00). This the Defendant has defaulted in payment, though he stated the vehicle for which the loan was contracted, was involved in an accident but he did not officially notify Plaintiff’s institution for a re-packaged payment of the loan. Be that as it may, Defendant has defaulted payment. A thirty (30) month loan is now Seventy- two (72) month and still counting. Obviously, he has and ought to pay any outstanding amount owed. Defendant states in paragraph 9, 10 and 11 of his witness statement dated 11th of November 2023 and filed on 15th of November, 2023 that: “I wish to state that some of my payments made to the Plaintiff’s Union had not been recorded in my Passbook. I wish to state that the Plaintiff’s action should not be countenanced as part of the depositions in both the statement of claim and witness statement are falsified, among others. I wish to state that upon receipt of Exhibits ‘D’ and ‘D1’ respectively, I have made a total payment of Three Thousand Nine Hundred Ghana Cedis (GH₵3,900.00) which have not been debited into the Defendant’s Account as being paid even though the Plaintiff did receive same”. From the above and Per Exhibits ‘D’ and ‘D1’ dated 9th February, 2023 and 13th February, 2023, Defendant made payments and same exhibited and captured in Exhibit ‘D’ and Exhibits’6’, ‘6A,’ ‘6B’. ‘6C’ ‘6D’ and ‘6E’ respectively totaling Two Thousand Nine Hundred Ghana Cedis (GH₵2,900.00) with interest inclusive. This was before the Writ of Summons was issued in August, 2023. The Defendant again made payment at the Plaintiff’s institution after the Writ on the 11th of September, 2023 a total amount of One Thousand Ghana Cedis (GH₵1,000.00) with interest inclusive and exhibited by the Plaintiff but Defendant could not prove any evidence of payment on the said date. 10 Further, Defendant on the 10th of October, 2023 pleaded liable to One Thousand Ghana Cedis (GH₵1,000.00) out of the Three Thousand Nine Hundred and Seven Ghana Cedis Ninety-Eight Ghana pesewas (GH₵3,907.98) indorsed on the Writ of Summons. Note that Exhibits ‘E’ and ‘E1’ are the Caution Notice made to Defendant over his indebtedness. Exhibits ‘D’ and ‘D1’ are Defendant’s statement of the loan. The Defendant in stating that the Plaintiff in his statement of claim and witness statement falsified figures needed to produce sufficient evidence to disprove the plaintiff’s claim. Evidence is information or material offered to the court to prove or disprove an issue in case. Random House Webster’s Unabriged Dictionary, 2nd ed; defines “evidence” at page 672 as: “That which tends to prove or disprove something; ground for belief; proof”. Black’s Law Dictionary 7th ed. at page 576 defines evidence as: “Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact”. Phipson on Evidence, 12th ed. at page 2, explains evidence inter alia that: “In a real sense evidence is that which may be placed before the court in order that it may decide the issues of fact”. See: The Essentials of the Ghana Law on Evidence, page 9 by S.A Brobbey. The Evidence Act, 1975 (NRCD 323) defines evidence at Section 176 as: 11 “Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or non-existence of a fact”. These definitions simply imply that evidence is made up of the information, facts or materials put before the court to prove or disprove an issue. These evidence must be presented to the Court to convince it of the merits of one’s case. The rules of evidence have been advanced to accomplish a just end in an action as they are purported to allow provable factual response to allegations raised by either party I do not think that there can just result gleaned from hearing the other side pursuant to the audi alteram parterm rule without room for adducing of evidence. In our jurisdiction, evidence adduced by either party must be admissible and relevant to proving the case argued at hand. In this instant, the Defendant had to perform his side of exercise in court by adducing evidence. The evidence required here and as the contract of the loan was formal; he needs to prove with relevant document(s) to disprove the Plaintiff’s case for a ruling in his favour. The position of the defendant was summarized by the Supreme Court in Barima Gyamfi v. Ama Badu [1963] 2 GLR 596 (in holding 1) as follows: “In a claim made by the Plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendant’s evidence may be, it cannot avail the Plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiff’s evidence might have created in the 12 Plaintiff’s favour or it tends to corroborate the Plaintiff’s evidence or tends to show that evidence led on behalf of the Plaintiff was true. There is the need to state clearly that when it comes to prove of an issue it is not every piece of evidence that has been introduced into the case that the court is obliged to consider in arriving at a decision, the court is obliged to consider only relevant and material evidence that goes to establish the issue based on what is required by law to prove same. Particularly, so when the Defendant was specific in paragraphs 9, 10 and 11 of his witness statement. Though he produced Exhibits ‘6’ series to prove some payment of the loan but did not suffice to disprove the Plaintiff’s claim or his assertion that the Plaintiff may be owing him. All monies paid and same recorded in Defendant’s passbook were issued with receipts as prove of payment. The Defendant could not produce all receipts evidencing payment since March 2018 when payment of loan commenced. Defendant was given a one (1) month moratorium or as grace period to start payment of the loan contracted in February 2018 precisely 20th as evidenced in Exhibits ‘C’ and ‘3’ respectively. Per the evidence, the Defendant never complied with the payment pattern as per Exhibit ‘C’. Nonetheless, and in the natural sense, the person who borrowed the money is the person expected to pay. From the foregoing, the outstanding amount owed is One Thousand Five Hundred and Sixty Ghana Cedis Twenty-four Ghana pesewas. (GH₵1,560.24). Defendant is to settle the amount forthwith with interest at 3% as agreed and per their contract. Judgment is entered for Plaintiff to recover One Thousand Five Hundred and Sixty Ghana Cedis, Twenty-Four Ghana pesewas from the 13 Defendant forthwith. I award costs of One Thousand Ghana Cedis (GH₵1,000.00) against the Defendant. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 15TH MARCH, 2024