Republic Bank Vrs Kweifio-okai [2022] GHAHC 122 (11 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) ACCRA HELD ON FRIDAY THE 11TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH J. (MRS.) ======================================================== SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK …. PLAINTIFF Ebankese, No.35,6th Avenue North Ridge, Accra VS. LORRAINE KWEIFIO-OKAI .… DEFENDANT F876/1, Oxford Street, Osu Accra ======================================================== PARTIES: ABSENT COUNSEL: ERNEST ASSIE HOLDING BRIEF FOR RUBY AKUA AGLAGOH FOR PLAINTIFF – PRESENT COUNSEL FOR DEFENDANT – ABSENT ======================================================== J U D G M E N T ======================================================== SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI INTRODUCTION The Plaintiff by its writ of summons filed on the 15th of March, 2017 seeks the following reliefs. a) b) c) Full and final recovery of the sum of GH¢ 1,080,939.85. Interest on the sum of GH¢ 1,080,939.85. Legal fees and costs. PLAINTIFF’S CASE The Plaintiff is a Ghanaian registered limited liability company engaged in the business of banking whilst the Defendant is a businesswoman and customer of the Plaintiff. Plaintiff in its amended statement of claim filed in the 15th of March, 2017 avers that sometime in or about the 16th of August 2007, it offered to the Defendant upon her request, a term loan facility in the sum of Fifty Thousand United States Dollars (USD$ 50,000.00). The loan was at a variable interest rate of 12% per annum (adjustable per the Plaintiff’s cost of funds) and payable over a 15-year period. The said facility was secured with a mortgage over property numbered F687/1 situate on the Oxford Street Osu, Accra. This facility was to be used by the Defendant to convert her two storey residential buildings to offices and shops for rental. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI On the 22nd of January, 2008, the Defendant again requested for and was granted an additional facility of Fifty Thousand United States Dollars (USD$ 50,000.00) on the 2nd of February, 2008. This brought the total amount owed by the Defendant to Ninety-three thousand one hundred and ten dollars forty. Nine cents (US$ 93,110.49. The Defendant again requested another loan facility of Fifty Thousand United States Dollars (USD$ 50,000.00.) on the 24th of April, 2008 and the same was granted on the 2nd of July 2008 bringing her total indebtedness One Hundred and Forty-One Thousand Seven Hundred and Twenty-Eight United States Dollars Eleven Cents (USD$ 141, 728.11). Another request for a loan facility of Twenty-Five Thousand United States Dollars (USD$ 25, 000.00.) was made by Defendant on the 11th of October, 2010 and same was granted by the Plaintiff. This, according to the Plaintiff brought her total indebtedness to One Hundred and Fifty-Eight Thousand One Hundred and Fifteen United States Dollars Thirty-Nine Cents (USD$ 158,115.39). Following this the Defendant requested that her loan be restructured and the same was restructured by the Plaintiff on the 2nd of June, 2013. Upon the said restructuring, the Defendant’s indebtedness which stood at Two Hundred and Twenty-Four Thousand Five Hundred and Twenty United States Dollars Eighty-Nine Cents (USD$ 224,520.89.) was to be paid at an interest rate of 13.5% per annum for a duration of 180 months payable in SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI monthly installments of Two Thousand Eight Hundred and Eighty-Two United States Dollars (USD$ 2,882). According to the Plaintiff, the Defendant has, till date failed or refused to settle her indebtedness despite several demands and the extensions granted her by the Plaintiff. The amount due the Plaintiff and owed by Defendant as at July 2013 stood at One Million and Eighty Thousand Nine Hundred and Thirty-Nine Ghana Cedis Eighty-Five Pesewas (GH ¢1,080,939.85) being the Ghana cedi equivalent of Two Hundred and Seventy-Three Thousand Seven Hundred and Thirteen United States Dollars Sixty-Four Cents (USD$ 273,713.64) which constitutes the principal and unpaid interest. Consequently, Plaintiff seeks the intervention of this Court as the Defendant has evinced a clear intention not to honor her repayment obligations. DEFENDANT’S CASE The Defendant in a terse Statement of Defence flatly denies owing the Plaintiff. She admits having been advanced the various loan facilities by Plaintiff but denies being indebted to Plaintiff in the various sums claimed or at all. She maintains that the successive facilities granted her by Plaintiff is ample proof that she was religiously paying off her debts. Her case in sum is that she has fully discharged her indebtedness to Plaintiff. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI ISSUES FOR DETERMINATION Following the inability of the parties to resolve their dispute, the following issues were settled for trial: a) Whether or not the Plaintiff gave notice to the Defendant as a reminder of Defendants obligations under the loan agreement. b) Whether the Defendant owes the plaintiff the sum of One Million and Eighty Thousand Nine Hundred and Thirty-Nine Ghana Cedis Eighty-Five Pesewas (GH¢ 1,080,939.85). c) Whether the Surety Mortgage dated the 7th of October was used as security for the facility. BURDEN OF PROOF In my view, all the above issues can be summed up into one fundamental question. This is whether or not the Plaintiff has established on a balance of probabilities that the Defendant is indebted to it in the sum endorsed on the writ of summons or at all. As a starting point it is important to bear in mind the salutary legal principle that the legal or persuasive burden is borne by the party who will loose on a particular issue if he does not produce sufficient evidence to establish the facts alleged. See the case of Boakye v Asamoah [1974] 1 GLR 38 @ 45. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI The onus was thus first on the Plaintiff to establish on a balance of probabilities the fact that Defendant was indebted to it in the sum of One Million and Eighty Thousand Nine Hundred and Thirty-Nine Ghana Cedis Eighty-Five Pesewas (GH¢ 1,080,939.85) as at July 2013. This legal position is clearly reflected in Sections 10, 14 and 17 of our Evidence Act, 1975 (NRCD 323). The evidence of led by the Plaintiff will therefore now be critically examined. PROOF OF DEMANDS MADE ON THE DEFENDANT What can be gleaned from the Plaintiff’s pleadings is the contention that it has been compelled to approach this Court because the Defendant has failed or refused to honour her repayment obligations, despite persistent several reminders. Curiously, apart from the bald laconic averment in paragraph 13 of its Amended Statement of Claim, no evidence was put before this Court by the Plaintiff to substantiate its claims. Given the formal nature of the Parties’ relationship, I am of the view that this averment was capable of positive proof. I say so because by their course of dealing, it is, to me, inconceivable that the said reminders calling on Defendant to settle her indebtedness would have been by any means other than formal. Consequently, Plaintiff ought to have been able to produce evidence of same. This it failed to do in spite of the fact that its assertions were stoutly challenged by the Defendant. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI It is well-settled that a party who makes an averment which is denied does not prove that averment by merely repeating it on oath. This principle was encapsulated in the oft-cited case of Majolagbe v Larbi [1959] I GLR 190 and emphasized in the more recent case of Klah v Phoenix Insurance Co Ltd. [2012] 2SCGLR 1139. Accordingly, this issue must be resolved in favour of the Defendant. I find as a fact that no demands were made on the Defendant for the payment of the alleged debt DOES THE DEFENDANT OWE THE PLAINTIFF THE SUM OF ONE MILLION AND EIGHTY THOUSAND NINE HUNDRED AND THIRTY- NINE GHANA CEDIS EIGHTY-FIVE PESEWAS (GH¢ 1,080,939.85)? As already noted, the instant suit revolves around this particular issue. I must however start its resolution by pointing out that I have not overlooked the principle laid down in the case of ADJEIODA v CFAO [1971] 2 GLR 11. In that case the Court held that; “The general rule is that the animus probandi is on the party who substantially asserts the affirmative of the issue. But where the defendant in an action for the recovery of a debt pleads that it has been paid, the burden shifts upon him to prove payment” It is however important to note that this evidential burden does not shift onto the Defendant from nothing. The existence of the debt must be established first and foremost, before a Defendant is called upon to prove SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI payment of same. This is especially so in this case, where Plaintiff admits that the Defendant was religiously servicing the loan facilities. Now, on the 2nd day of February, 2022, when Counsel for Defendant sought to ascertain during cross-examination of the Plaintiff’s representative, Edem Timpo, how the Defendant’s indebtedness (if any) built up to the amount claimed. This is what the said witness had to say; Q: So from EXHIBIT ‘C”… can you tell the Court the balance as at December 2007 on the account? A: No I cannot tell on the statement because the statement was generated from the 30th of August 2007 to 1st November 2014..... Q: Can you tell from Exhibit “C” the balance on the account as at the 11th of October, 2010. A: No, I cannot… Q: Once again from the same exhibit can you tell the Court the amount outstanding as at 2nd July 2010. A: No, I cannot tell. Q: Please can you tell from the same statement the balance outstanding as at the 2nd of June, 2013. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI A: No, I cannot tell. From the above exchange this Court can only come to one of 2 conclusions- either the Plaintiff was simply remiss in not producing such vital evidence before this Court or had absolutely no reasonable basis for concluding that the Defendant was indebted to it in the sum claimed. One of the above answers which I find almost incomprehensible is the witness’s statement that he could not tell the balance outstanding as at December 2007 because the statement was generated from August 2007 to November 2014! Again, the next day i.e. the 3rd of February, 2022 the witness was asked Q: It is your evidence that the first facility that was granted to the Defendant, was paid off, is that the case? A: Yes, the first facility granted to the Defendant in 1997 [sic] was paid off. Q: Between August 2007 and 25th February 2008, can you tell the court the amount that accrued on the Defendant’s liability, if any? A: I may not be able to give an accurate figure because I do not have a loan statement for that period before me. Q: Can you also tell the Court the amount that accrued between the 25th of February, 2008 and the 2nd of July 2008. If any? SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI A: No, I cannot unless I make reference to a loan statement. What the above exchange reveals is that the Plaintiff itself could not state with any accuracy, the exact amount owed by Defendant at any given time. The inherent conflicts in the figures stated in the Plaintiff’s pleadings as being outstanding on specific dates become obvious when matched against those appearing in EXHIBIT C. In paragraph 5 of its Amended Statement of Claim, Plaintiff stated that the Defendant’s indebtedness stood at Ninety-Three Thousand One Hundred and Tent United States Dollars Forty-Nine Cents (USD$ 93, 110.49) as at the 25th of February, 2008. However, an examination of EXHIBIT C reveals that this fact does not reflect there at all. Even if we decide to give the Plaintiff the benefit of the doubt and proceed to consider the balance outstanding on the date closest to the 25th of February, 2008, we find the amount outstanding to be Five hundred and fifteen United States Dollars (USD$ 516.00) as at the 29th of February, 2008 Likewise in paragraph 6 of the Amended Statement of Claim the Defendant is alleged to have been indebted to the Plaintiff in the sum of One Hundred and Forty-One Thousand Seven Hundred and Twenty-Eight United States Dollars Eleven Cents (USD$ 141, 728.11) as at the 2nd of July, 2008. Its own Exhibit C however proves otherwise. It discloses that the amount outstanding to be Four United states Dollars thirty-six cent (USD$ 4.36) SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI Paragraph 7, also reveals the same inconsistency by stating that the amount outstanding as at the 11th of October, 2011 was One Hundred and Fifty-Eight Thousand One hundred and Fifteen United States Dollars Thirty-Nine Cents (USD$ 158, 115.39). However, Plaintiff’s own Exhibit C discloses that the balance as at that date was $28.08 There is also the issue of where the amount of Two Hundred and Twenty- Six Thousand Four Hundred and Forty-Six United States Dollars Forty- Two Cents (USD$ 226,446.42 sprung from as the total amount due the Plaintiff in Exhibit C. The Plaintiff’s contention that this was a result of the introduction of a new software can hardly be an acceptable explanation for its failure to provide this Court with the details of how Defendant’s indebtedness swelled up to that amount. Additionally, this Court is left wondering how the Defendant’s indebtedness then jumps to Two Hundred and Seventy-Three Thousand Seven Hundred and Eighteen United States Dollars (USD$ 273, 718) as at July 2013. It is this sum that the Plaintiff says converts to One Million and Eighty Thousand Nine Hundred and Thirty-Nine Ghana Cedis Eighty-Five Pesewas (GH¢ 1,080,939.85). The basis of Plaintiff’s computation is anybody’s guess as there is no evidence to explain same. Plaintiff again proffered no evidence to explain the circumstances under which it unilaterally converted a dollar transaction into one denominated in cedis. As Counsel for Defendant rightly asks “was defendant not entitled SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI to know the applicable rate of interest, the rationale for conversion and the exchange rate?” Indeed, the lack of supporting evidence and the inconsistencies in Plaintiff’s case are so numerous that listing them all may end up overburdening this judgement. But to the extent that the Plaintiff rooted its case mainly on EXHIBITS C, D and E to establish the Defendant’s indebtedness, its claim before this Court. The Plaintiff’s evidence on this particular issue is so porous and conflicting that this Court and indeed no Court of law should be persuaded by it. Having adopted this line of reasoning, it really becomes unnecessary to consider other aspects of the case. However, I intend to address the other niggling issues only briefly. EXHIBIT A The circumstances under which Exhibit A was purportedly written do not enthuse this Court to attach any weight to same. According to Plaintiff, it was written in response to a request by the Defendant for her debt to be restructured. This assertion the Defendant vehemently denies both in her Statement of Defence and under cross-examination. In my view, this was yet another assertion that was capable of positive proof however Defendant’s letter purportedly requesting the restructure of the facility was never produced in this Court. Another curious point about Exhibit A is that it is dated the 2nd of June 2013 but the opening paragraph indicates that it SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI was being written in response to Defendant’s request dated May 12 2014. The natural question is, how is it possible that the response to the said request preceded the request itself? Can this Court rule out the possibility that the said exhibit was manufactured for this trial. Even if the Plaintiff is given the benefit of the doubt and this Court assumes it was a typographical error, its failure to tender the Defendant’s letter allegedly requesting the said restructuring makes me doubt the authenticity of the said Exhibit. WAS THE SURETY MORTGAGE DATED 2017 THE 7TH OF OCTOBER USED AS SECURITY FOR THE FACILITY Plaintiff tendered Exhibit B to prove that the loan facility was secured by a legal mortgage dated the 7th of October, 2010. In my considered opinion Counsel for Defendant seems to be dwelling on legal niceties when he argues that Exhibit B is insufficient to establish the indebtedness of the Defendant. I say so because the Defendant’s execution of same amounts to an acknowledgement that her indebtedness to Plaintiff stood at One Hundred and Fifty-Eight Thousand Four Hundred and Fifty-Three United States Dollars, Five Cents (USD$ 158, 453.05) at the time. But that, in my view, is where the probative value of Exhibit B ends. The unreliable nature of Exhibits C, D and E makes it difficult for the Court to ascertain what happened thereafter. Curiously, the said debt of One Hundred and Fifty- Eight Thousand Four hundred and Fifty-Three United States Dollars, Five Cents (USD$ 158, 453.05) does not even reflect in Exhibit C. For this reason, that I consider Exhibit B to be of little or no probative value. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI NO FACILITY LETTER(S) Of all the weaknesses in the Plaintiff’s case this is what I find to be the most damning. There is no doubt that the relationship between the parties was contractual. Consequently, this Court would only be in the position to ascertain the rights and obligations of each party from the facility letter or agreement entered into by them. This piece of evidence was fundamental to the Plaintiff’s case. However, Plaintiff failed to produce same in Court. In the face of the total want of evidence establishing the Defendant’s obligations, how does the Plaintiff justify slapping the Defendant with charges such as legal fees for preparation of site plans, stamp duty on mortgage deed and valuation fee claims by BROLL Ghana? Plaintiff’s representative admitted under cross-examination that all these charges feed into the actual balance with interest continually accruing thereon. The witness also admitted that these charges would only be rightly debited if borne out of a contract. The question that desperately calls for an answer is why the Plaintiff never produced evidence of the said contract in court. Plaintiff did not attempt to give any explanation for this. CONCLUSION As the party with the persuasive burden the Plaintiff could have done better than merely repeat its averments on oath. Throughout the trial the it failed to make available vital documents on which its action rested. Defendant’s Notice to Produce Documents yielded no results. Again, the Referee SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI appointed by this Court to reconcile accounts between the Parties by a letter dated the 12th of November 2021 informed the Court that he could not perform the task due to “practical difficulties” in the documents presented. I am inclined to think that these “practical difficulties” arose from the unavailability of these vital documents. Counsel for Plaintiff has sought to rely extensively on inferences in his written address. Unfortunately, this does not help the case of the Plaintiff much as inferences are not drawn from a vacuum. They are drawn from established facts. See Section 18(2) of NRCD 323. I must also add for good measure that the fact that the Plaintiff still retains Defendant’s title documents does not in and of itself establish that Defendant is indebted to Plaintiff in the sum claimed or at all. There could be a myriad of reasons for this. The Defendant had no duty to disprove that she owed the Plaintiff unless the evidentiary burden shifted. I find that the Plaintiff failed to make out a case that required the Defendant to dislodge its claims and for the Court to decide whose version was more probable than not. The Plaintiffs action therefore fails. DECISION Plaintiffs action dismissed. I award costs of Ten Thousand Ghana Cedis (GH¢10,000.00.) in favour of Defendant against the Plaintiff. SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI (SGD) AKUA SARPOMAA AMOAH (MRS) JUSTICE OF THE HIGH COURT CASES REFERRED TO: A. BOAKYE V ASAMOAH [1974] 1 GLR 38 @ 45 B. MAJOLAGBE V LARBI [1959] I GLR 190 C. KLAH V PHOENIX INSURANCE CO LTD. [2012] 2SCGLR 1139. D. ADJEIODA V CFAO [1971] 2 GLR 11. STATUTE REFERRED TO: EVIDENCE ACT, 1975 (NRCD 323). SUIT NO. CM/TBFS/0017/2017 REPUBLIC BANK VS LORRAINE KWEIFIO-OKAI