ODOTROBRI RURAL BANK VS MARY PREMPEH (H1/27/18) [2023] GHACA 145 (5 April 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL KUMASI – GHANA AD - 2023 CORAM: MENSAH-DATSA (MRS) J.A. (PRESIDING) BAAH J.A. AMALEBOBA (MRS) J.A. CIVIL APPEAL NO: H1/27/2018 5TH APRIL, 2023 ODOTOBRI RURAL BANK - PLAINTIFF/RESPONDENT VRS MARY OFORI PREMPEH - DEFENDANT/ APPELLANT JUDGMENT AMALEBOBA (MRS) J.A. This is an Appeal from the decision of the High Court (Commercial Division), Kumasi dated 9th November 2016. Judgment was entered for the Plaintiff/Respondent (hereinafter referred to as the Plaintiff), against the Defendant/Appellant (hereinafter referred to as 1 the Defendant). The Counterclaim of the Defendant was dismissed. Being aggrieved with the decision of the High Court, the Defendant filed the instant Appeal. By its Writ of Summons filed in the High Court, the Plaintiff claimed the following reliefs: (a) Recovery of SIXTY THOUSAND ONE HUNDRED AND TWELVE GHANA CEDIS TWENTY THREE PESEWAS (GHȼ60,112.23) being defendant’s indebtedness to the Plaintiff as a result of a loan facility Defendant took from Plaintiff which was secured with House Number Plot 8 Block III Gyinyase Kumasi and which facility Defendant has failed/refused to refund. (b) Interest accrued on and accruing on the said SIXTY THOUSAND ONE HUNDRED AND TWELVE GHANA CEDIS TWENTY THREE PESEWAS (GHȼ60,112.23 p) till date of final payment. (c) In the alternative Judicial Sale of House Number Plot 8 Block III Gyinyase Kumasi. The Plaintiff’s case in the Court below in summary was that, it is a banking institution incorporated under the laws of Ghana, with its head office in Kumasi. According to the Plaintiff, the Defendant who is a customer of the bank was granted a loan facility of Thirty – Five Thousand Ghana Cedis ( GH¢ 35,000.00) on 27th July 2006, to expire on 29th June 2007. The Plaintiff averred that the said loan facility was secured by a mortgage over the Defendant’s property known as House Number Plot 8, Block iii, Gyinyase, Kumasi. The Plaintiff averred further, that the Defendant has defaulted in the repayment of the facility and all efforts to get her to pay her just debts have proved futile. The Plaintiff therefore 2 prayed the High Court to compel the Defendant to repay the outstanding amount on the loan facility, in the sum of Sixty Thousand One Hundred and Twelve Ghana Cedis, Twenty -Three Pesewas (GH¢¢60,112.23) and for further reliefs as reproduced above. The Defendant denied the assertions of the Plaintiff and put it to strict proof. She averred that upon assurances by the Plaintiff that it will avail her of Letters of Credit, she embarked on a business trip to China to buy goods, with the full knowledge that the Plaintiff will keep its word. The Defendant asserted that the said goods having been consigned to Ghana after their purchase, the Plaintiff reneged on its promise, thereby causing her incalculable losses. According to the Defendant, she again made it known to the Plaintiff that the only way she could make up for the said losses was for the Plaintiff to advance to her some sums of money for her business trips to China. According to the Defendant, though the Plaintiff again undertook to finance these trips as result of which she was made to go for a pro – forma invoice, the Plaintiff again failed to perform its side of the bargain, thereby causing her embarrassment and a loss in excess of Seventy Thousand Ghana Cedis( GH¢ 70,000.00), which the Plaintiff must be made to pay. The Defendant also averred that the Plaintiff through subterfuge, got her to provide a fresh guarantor in the name of one Nana Prempeh whose guarantee superseded the original agreement and therefore freed the original collateral (being the mortgage), from any previous transaction. The Defendant filed a counterclaim praying for the following reliefs: (a) General special exemplary and punitive damages for the Plaintiff’s breach of contract which has occasioned great financial loss to the Defendant. (b) An order of the Honourable Court compelling the Plaintiff to surrender the documentation covering H/No. Plot 8 Blk. III GYINYASE-KUMASI in the 3 face of the Plaintiff’s multiple contractual breaches which has destroyed the basis and foundation on the original agreement. (c) SUCH FURTHER ORDERS (S) as the Honourable Court may deem fit. At the close of the pleadings the following issues were set down for trial by the pre – trial Judge: 1. Whether or not the Defendant is indebted to the Plaintiff in the sum of GHȼ60,112.23 or any part thereof? 2. Whether or not the Plaintiff entered into any oral contractual undertaking with Defendant? 3. Whether or not the Plaintiff breached this undertaking thus causing financial loss to the Defendant? 4. Whether or not the Plaintiff by its conduct caused the original collateral provided by the Defendant to be superseded by another one? 5. Whether or not the Plaintiff is entitled to its reliefs endorsed on its writ? 6. Whether or not the defendant is entitled to its counterclaim: 4 (a) Seeking general, special and exemplary damages for Plaintiff’s breach of contract. (b) A release of Defendant’s title deeds. At the close of the trial and upon the evaluation of the evidence, the learned trial Judge having found that the Plaintiff had established its claims, while the Defendant had failed to establish her counterclaim, entered Judgment for the Plaintiff and dismissed the counterclaim of the Defendant. It is this Judgment which the Defendant seeks to overturn by this Appeal. By the Notice of Appeal filed by the Defendant on 21st November 2016 which is at page 310 of the Record of Appeal, the Appeal is anchored on the following grounds: a. The Court erred in holding that the Plaintiff bank being a financial institution could not reasonably request that Nana Prempeh, the landlord of the Asawasi branch of the Plaintiff’s bank, swear a statutory declaration stating that he was the guarantor for the Defendant/Appellant thereby freeing up H/No. Plot 8 III Gyinyase, Kumasi which was the initial collateral. b. The Court did not properly evaluate the evidence put forward in the trial and its findings were contrary to the evidence on record. c. The Court erred when it stated that the Defendant/Appellant did not contest the claim that she had paid just Sixteen Thousand Five Hundred Ghana Cedis (Ghȼ16,500.00) when several pieces of evidence were led to show clearly that the 5 cumulative payments made by the Defendant/Appellant was well in excess of the amount stated by the court to be uncontested by her. d. The Court erred in law by not holding that the Plaintiff bank did not properly prove the liability of the Defendant/Appellant in law to warrant Judgment being given in its favour. e. The Court erred in law by not making a finding that Letters of Credit was promised the Defendant/Appellant but same was eventually not granted leading to acute losses suffered by the Defendant/Appellant in spite of copious evidence to the contrary and the General Manager Mr. S. B. Ahmed admitting that the Plaintiff bank indeed promised Letters of Credit. f. The Court erred in law by holding that in spite of the several breaches of promises made to the Defendant/Appellant by the Plaintiff/Respondent she could not attribute her losses to the actions of the Plaintiff bank. g. The Judgment is against the weight of the evidence. h. Further grounds will be added upon receipt of a certified true copy of the Court’s ruling. No further grounds of Appeal were filed by the Defendant, notwithstanding ground H of the Notice of Appeal. 6 We have taken the position to determine grounds B, C, D & G together, as these grounds determined together will substantially determine the Appeal. Further, these grounds will all necessarily require this Court to examine the entire Record of Appeal, taking into account the testimonies of the witnesses, including the documentary evidence, to determine whether the findings of fact made by the trial Judge are wholly unsupportable by the evidence. This determination on the findings of fact is not only limited to the facts on record, for where a decision on the facts requires a determination on what the law is on a point or issue, this Court needs to make a determination of both law and fact. This was the position taken in the case of OWUSU -DOMENA V.AMOAH [2015 – 2016] SCGLR 790 @ 799 per Benin JSC ( as he then was) as follows: “…….Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. It is for this reason that ground D is best determined with the other grounds stated above. There is a presumption that the Judgment of the Court below on the facts is correct. As such, where the Defendant who is the Appellant contends that the Judgment of the Court below is wrong, she ought to displace the presumption in favour of its correctness. In the case of KISSIEDU V. DOMPREH [1937 WACA] 281@ 286, Lord Russel stated of the presumption thus: “Their Lordships find it impossible to say that the Court of Appeal could on the materials before them, properly be satisfied that this finding of fact by the trial judge must be erroneous. No doubt an appeal in a case tried by a judge alone is not governed by the same rules which apply to an appeal after a trial and verdict by a jury. It is rehearing. Nevertheless, before an appellate court 7 can properly reverse a finding of fact by a trial judge who has seen and heard the witnesses and can best judge not merely their intention and desire to speak the truth, but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced.” Furthermore, where the Defendant who is the Appellant, contends that the Judgment of the Court below is against the weight of evidence, the burden of proof is on her to establish same with reference to the evidence on record. The Court of Appeal per ESSIEM JA in AMPOMAH V. VOLTA RIVER AUTHORITY [1989-90] 2 GLR 28 at page 35 stated this principle as follows; “Where as in this case, an Appellant charges, that the Judgment of the Court below is against the weight of the evidence, it must be remembered that there is a presumption that the Judgment of the Court below on the facts is correct. The Appellant in such a case assumes the burden of showing from the evidence on record that the Judgment is indeed against the weight of the evidence. The Appeal on that ground must fail if that burden is not discharged…” In the case of DJIN V. MUSA BAAKO [2007 – 2008] SCGLR 686 (HOLDING 1), the Supreme Court held as follows; “Where (as in the instant case), an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly demonstrate to the appellate Court the lapses in the Judgment being appealed against”. The onus is therefore upon the Defendant, being the Appellant in this case, to demonstrate which pieces of evidence were wrongly applied against her and which 8 pieces of evidence were not applied and if applied, will turn the decision of the Court below in her favour. Though the burden of proof is on the Appellant in an Appeal to show that the Judgment is against the weight of evidence, this Court ought to look at the entire Record of Appeal, taking into account the testimonies and documentary evidence to satisfy itself that the Learned Trial Judge’s conclusions are amply supported by the evidence. This was the position taken by the Supreme Court in the case of TUAKWA V. BOSOM [2001 – 2002] SCGLR 61@ 65 per Sophia Akuffo JSC. However, as held in In Re Okine (DECD) DODOO AND ANOR V. OKINE [2003 – 2004] SCGLR 582, the Supreme Court stated thus: (Holding 1), “ an appellate court must not disturb the findings of fact made by a trial court, even if the appellate court could have come to a different conclusion, unless the findings of fact made by the trial judge were wholly unsupportable by the evidence. Therefore, where the evidence was conflicting, the decision of the trial court as to which version of the facts to accept was to be preferred, and the appellate court might substitute its own view only in the most glaring of cases. That was primarily because the trial judge had the advantage of listening to the entire evidence and watching the reactions and demeanour of the parties and their witnesses” Guided by the foregoing, we will now proceed to determine this Appeal. GROUNDS B, C, D, & G For ease of reference, these grounds already stated supra, will be reproduced below: b. The Court did not properly evaluate the evidence put forward in the trial and its findings were contrary to the evidence on record. 9 c. The Court erred when it stated that the Defendant/Appellant did not contest the claim that she had paid just Sixteen Thousand Five Hundred Ghana Cedis (Ghȼ16,500.00) when several pieces of evidence were led to show clearly that the cumulative payments made by the Defendant/Appellant was well in excess of the amount stated by the court to be uncontested by her. d. The Court erred in law by not holding that the Plaintiff bank did not properly prove the liability of the Defendant/Appellant in law to warrant judgment being given in its favour. g. The judgment is against the weight of the evidence. Counsel for the Defendant chose to argue grounds A, B and C together and the other grounds separately. The submissions of Counsel on grounds B, C, D and G are as follows: GROUNDS B & C: Counsel for Defendant argued that there were pieces of evidence on Record, which the Court below did not give proper consideration to, in evaluating the evidence. According to Counsel for Defendant, though evidence at pages 208, 377 - 381 and 383 of the Record of Appeal establish that the Defendant had made some payments, thereby reducing her indebtedness, the Court below did not take the said evidence into consideration, in arriving at its findings on the indebtedness of the Defendant. According to Counsel for Defendant, by so doing the trial Judge erred in his conclusion that the Defendant had only paid the sum of Sixteen Thousand Five Hundred Ghana Cedis ( GH¢ 16,500.00), in part settlement of her indebtedness. Counsel for the Plaintiff conceded, that the sum Sixteen Thousand Five Hundred Ghana Cedis (GH¢16,500.00) had been paid by Defendant after the commencement of the action. 10 Counsel for Plaintiff however, argued that save for this sum, the Defendant was unable to establish that any other sum had been paid after the suit was commenced. GROUND D The submissions of Counsel for Defendant on ground D of the Notice of Appeal are that, the Plaintiff sued for the sum of Sixty Thousand One Hundred and Twelve Ghana Cedis, Twenty – Three Pesewas (GH¢ 60,112.23), being the indebtedness of the Defendant accrued on a loan facility which was secured with Plot No 8 Block 3 Gyinyase. That however, in the evidence of Plaintiff’s representative, it became clear that the Plaintiff was in fact suing for the said sum on account of two different facilities, the said facilities being a loan facility of Twenty Thousand Ghana Cedis (GH¢20,000.00) granted to Defendant in November 2005, to expire in October 2006 and an Overdraft of Fifteen Thousand Ghana Cedis (GH¢15,000). Counsel for Defendant argued further, that though the Plaintiff testified that the interest rate was twenty - nine percent (29%), it was clear from the Mortgage Agreement that the interest was twenty – seven percent (27%) and not twenty - nine percent (29%). Counsel for Defendant further submitted, that the Plaintiff failed to produce a Statement of Account contrary to their indication that same will be produced. According to Counsel for Defendant, by the Plaintiff’s failure to produce the Statement of Account, it made it impossible for the High Court to accurately determine the actual indebtedness of the Defendant, as it could not take into account payments made, the sums unpaid and the applicable interest rate. Counsel for Defendant again repeated his argument, that in arriving at the indebtedness of the Defendant, the learned trial Judge did not take into account receipts tendered in evidence by the Defendant as Exhibit 24”, which establish that certain payments had been made by Defendant and admissions by the Plaintiff’s representative that the sum of 11 Sixteen Thousand Five Hundred Ghana Cedis (GH¢ 16,500.00) had been paid by the Defendant. Counsel for Plaintiff on his part argued, that the Plaintiff had established its case and was as such entitled to Judgment. According to Counsel for the Plaintiff, the Plaintiff tendered in evidence, Exhibits B and C, being Application and Approval letters, which establish that the Defendant was indeed granted the said loan facilities. Counsel for Plaintiff submitted that the said letters contained the dates on which the said facilities were granted, as well as the dates of repayment. According to Counsel for the Plaintiff, P W 1 testified on the total amount due at the date of the action and how same was computed, thereby establishing the Plaintiff’s claim. As already stated, Counsel for the Plaintiff admits the fact that the sum of Sixteen Thousand Five Hundred Ghana Cedis (GH¢16,500.00), paid by the Defendant was not taken into account by the trial Judge. GROUND G Though no separate arguments were made on this ground by Counsel for the Defendant, he has throughout his submissions on other grounds, among those above, made arguments on which pieces of evidence he contends were not taken into consideration, which pieces of evidence were applied wrongly and if taken into consideration, will result in this Court reversing the decision of the Trial Court. These submissions have been responded to by Counsel for Plaintiff. Therefore, as an Appeal is by way of rehearing, the Record from the Court below, will be examined by this Court. DETERMINATION OF GROUNDS B,C,D & G 12 The Plaintiff testified that it had granted loan facilities to the Defendant upon which she had defaulted. The evidence of the Plaintiff’s representative established that the Defendant was granted two facilities. A loan facility in the sum of Twenty Thousand Ghana Cedis (GH¢ 20,000.00) was granted to Defendant at an interest rate of twenty -nine Percent (29%) per annum and an Overdraft facility of Fifteen Thousand Ghana Cedis(GH¢15,000), at an interest rate of twenty -seven percent (27%) per annum, both amounting to Thirty – Five Thousand Ghana Cedis (GH¢ 35,000.00). The Defendant did not dispute this testimony which was supported by documentary evidence of Application and Approval letters. She in fact admitted the said testimony. The Defendant having made this admission, there was no need for any further proof by the Plaintiff to establish that the Defendant was granted these facilities. This position of the law was determined by the Supreme Court in the case of IN RE; ASERE STOOL; NIKOI OLAI V. AMONTIA IV (SUBSTITUTED BY NII TAFO AMON II) V. AKORTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III [2005 -2006] SCGLR 637 as follows: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish the fact, than by relying on the admission, which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency…..” The trial Judge was therefore right at page 4 of his Judgment (Page 306 of the Record of Appeal), when he made a finding of fact that the Defendant did not dispute the assertion that she had obtained these facilities, except as to the quantum owed at the time the suit was commenced against her. 13 Counsel for the Defendant argued, that the Plaintiff did not produce a Statement of Account, thereby making it difficult to determine the indebtedness of the Defendant. Though admittedly a Statement of Account would have been extremely helpful in determining the indebtedness of the Defendant, the failure to produce a Statement of Account does not of itself disable the Court from making a determination of the Defendant’s indebtedness. For in so far as evidence was led by both parties on the indebtedness of the Defendant, with the Plaintiff testifying on how it arrived at the sum sued for, the duty of the trial Court was to make a determination on the issue, on a balance of probabilities. The Supreme Court made this clear in the case of BISI V. TABIRI ALIAS ASARE [1897- 88] 2 GLR 360 @ pages 371 & 372 thus: "The term 'probability' denotes an element of doubt or uncertainty and recognizes that where there are two choices, it is not necessary that the jury be absolutely certain or doubtless, but that it is sufficient if the choice selected is more probable than the choice rejected." In the light of the contents of the burden of persuasion explained above, nothing stopped the judge from believing the first and the fourth plaintiff witnesses in spite of the rough edges of their evidence. Indeed, as properly commented on in the Court of Appeal by Adade J.S.C. (supra) at 299 there is no rule that "a court must be able, at all times, to accept the whole of a party's case as pleaded, or else it must dismiss it." Supposing A sued B in debt for ¢X and A's evidence established that the amount owing by B was less than ¢X, or even more than ¢ X will the court be entitled to dismiss the action because A's claim is inconsistent with what he has proved?” The case of the Plaintiff is that at the date of commencement of the action, the Defendant’s indebtedness was Sixty Thousand One Hundred and Twelve Ghana Cedis, Twenty – Three Pesewas (GH¢ 60,112.23). The Defendant by her testimony tendered in evidence 14 Exhibits 24”, 25” and 26” to establish that she had made some payments on the facilities the subject matter of the suit. Under cross- examination of the Plaintiff’s representative at page 47 of the Record of Appeal when Counsel for the Defendant sought to know how much had been paid by the Defendant since the Writ of summons was issued, the witness indicated the sum to be Sixteen Thousand Five Hundred Ghana Cedis (GH¢ 16,500.00). This answer was not further challenged by Counsel for the Defendant. Additionally at Page 133 of the Record of Appeal, when Counsel for the Defendant sought to know from PW1, how much was currently owed by the Defendant, he stated that initially the sum outstanding was about Sixty Thousand One Hundred and Twelve Ghana Cedis (GH¢ 60,112.00). This evidence was again not challenged by Counsel for Defendant. An attempt by Counsel for Defendant to impeach the evidence that only Sixteen Thousand and Five Hundred Ghana Cedis (GH¢ 16,500.00) had been paid, was unsuccessful. The said facts having been established, the Defendant then had the onus to adduce rebuttal evidence which she sought to do by producing Exhibits 24”, 25” and 26”. Several of the receipts tendered in evidence were payments made before the suit was commenced in the year 2010. As correctly indicated by Counsel for the Plaintiff in his submissions, a computation of sums paid by the Defendant after the commencement of the suit as evidenced by the receipts in evidence, in fact fall short of the sum of Sixteen Thousand and Five Hundred Ghana Cedis ( GH¢ 16,500.00). As again admitted by Counsel for the Plaintiff, the Plaintiff is however bound by its own evidence on record, as to the sums paid. The learned trial Judge was therefore correct in determining that the evidence on the indebtedness of the Defendant remained unchallenged. It was established from the evidence that the Defendant was therefore indebted to the Plaintiff in the sum of Sixty Thousand One Hundred and Twelve Ghana Cedis and Twenty – Three Pesewas (GH¢ 15 60,112.23) at the commencement of the suit. Having however, paid the sum of Sixteen Thousand Five Hundred Ghana Cedis (GH¢ 16,500.00) during the pendency of the suit, the Trial Judge fell into error when he entered Judgment for the Plaintiff in the sum of Sixty Thousand One Hundred and Twelve Ghana Cedis, Twenty – Three Pesewas (GH¢ 60,112.23), without taking into account the sum of Sixteen Thousand Five Hundred Ghana Cedis ( GH¢ 16,500.00), admitted to have been paid to the Plaintiff by the Defendant. Counsel for Plaintiff in conceding this error prays this Court to make the said deduction and vary the trial Court’s Judgment. We find that indeed the Judgment on the quantum outstanding on the loan facilities at the date of Judgment, is against the weight of evidence. Having so determined, this Court will deduct the sum of Sixteen Thousand Five Hundred Ghana Cedis ( GH¢ 16,500.00) from the sum of Sixty Thousand One Hundred and Twelve Ghana Cedis, Twenty – Three Pesewas (GH¢ 60,112.23) established to have been due at the date of the action. On this issue, the Appeal succeeds. Counsel for Defendant argued further that though the Plaintiff testified that the interest rate on the loan facility was fixed at twenty- nine percent (29%) per annum, the Mortgage Deed in evidence (Exhibit D), which was security for both facilities in the total sum of Thirty Five Thousand Cedis ( GH¢ 35,000.00) with interest, states the interest rate as twenty – seven percent (27%) per annum. Counsel for Defendant in his submissions argued, that in view of the evidence on record, the trial Judge ought to have determined the applicable interest rate upon the Judgment, and a failure to do so makes the interest applicable to the Judgment debt uncertain. 16 The evidence adduced on behalf of the Plaintiff at the trial, as supported by Exhibits in evidence, establish that the interest rate on the loan facility was fixed at twenty- nine percent (29%) per annum, and that on the Overdraft facility fixed at twenty- seven percent (27%) per annum. However, the Mortgage Deed in evidence (Exhibit D), which was security for both facilities in the total sum of Thirty Five Thousand Cedis with interest, states the interest rate as twenty -seven percent (27%) simple interest, per annum. Save to claim interest till date of final payment, the Plaintiff did not in its Writ of Summons state the applicable rate of interest recoverable on the total sum outstanding. Due to the conflicting evidence adduced by the Plaintiff on the interest rates and the fact that the Plaintiff did not in its suit separate the two facilities, the failure of the trial Judge to resolve this issue upon the Judgment, leaves same undetermined. As an Appeal is by way of rehearing, this Court is enjoined to determine the interest rate applicable to the debt after Judgment, to avoid ambiguity. On what the recoverable interest rate should be after Judgment, Rule 1 - of the COURT (AWARD OF INTEREST INSTRUMENT AND POST JUDGMENT ) RULES 2005 provides as follows: RULE 1 - Order for payment of interest “1. If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated: (a) At the bank rate prevailing at the time the order is made, and (b) At simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner”. 17 In this case, the Plaintiff has sued to recover a total of Sixty Thousand One Hundred and Twelve Ghana Cedis and Twenty – Three Pesewas (GH¢ 60,112.23) accrued on two separate facilities with two different interest rates, one at twenty – nine percent ( 29 % ) and the other at twenty seven - percent (27%). The Plaintiff has also secured a mortgage on the two facilities and stated therein that the facilities will attract a simple interest rate of twenty – seven percent (27%). The Plaintiff has also sued upon the mortgage by which the Mortgagor has secured payment of the debt. The Plaintiff who decided to lump the two facilities together, failed to establish which of the rates are to be applicable to the total debt. The inconsistency will be resolved against the Plaintiff, who failed in its duty to establish the applicable interest rate at the date of the action, and in favour of the Defendant. The Plaintiff will therefore be entitled to recover simple interest on the Judgment, at twenty - seven ( 27%) per annum. The said interest to run from the date of the action when the accrued sum became due, till date of final payment. The Appeal succeeds on this issue. GROUNDS A, E AND F We will now determine grounds A , E and F of the Notice of Appeal as reproduced below: A. The Court erred in holding that the Plaintiff bank being a financial institution could not reasonably request that Nana Prempeh, the landlord of the Asawasi branch of the Plaintiff’s bank, swear a statutory declaration stating that he was the guarantor for the Defendant/Appellant thereby freeing up H/No. Plot 8 III Gyinyase, Kumasi which was the initial collateral. E. The Court erred in law by not making a finding that Letters of Credit was promised the Defendant/Appellant but same was eventually not granted leading 18 to acute losses suffered by the Defendant/Appellant in spite of copious evidence to the contrary and the General Manager Mr. S. B. Ahmed admitting that the Plaintiff bank indeed promised Letters of Credit. F. The Court erred in law by holding that in spite of the several breaches of promises made to the Defendant/Appellant by the Plaintiff/Respondent she could not attribute her losses to the actions of the Plaintiff bank. GROUND A Arguments by Counsel for the Defendant on this ground are that, PW1, the General Manager of the Plaintiff Bank admitted that one Nana Prempeh submitted to them, a Statutory Declaration stating that he will pay the indebtedness accruing on the loan facilities, if the Defendant is unable to pay same. The said Statutory Declaration, Exhibit B11 according to Counsel for Defendant, constituted a contract of guarantee and was meant to replace the mortgage on the property at Gyinyase, the subject of this suit. Counsel for Defendant submitted that the trial Judge erred in substituting his opinion for evidence on the Record, by holding that the Plaintiff being a prudent bank would not have accepted the Statutory Declaration to replace a mortgage, as the latter was better collateral for the loan facilities. On this ground, Counsel for Plaintiff argued, that the Statutory Declaration by the said Nana Prempeh does not disclose which of the two loan facilities were to be secured by his purported guarantee, thereby rendering the said Statutory Declaration vague. According to Counsel for the Plaintiff, the intention of the parties was for the loan facilities to be secured by the mortgage and no extrinsic evidence could be admitted to construe the Mortgage Agreement. Counsel for Plaintiff further argued, that a Statutory 19 Declaration being a self – serving document, the contents of which had been challenged under cross- examination, same had no probative value, whatsoever. The Defendant’s evidence at the trial was that, it was the Plaintiff which asked her to get someone of substance to guarantee another loan facility she requested for. According to the Defendant, Nana Prempeh voluntarily signed the said Statutory Declaration. PW1 testified that Plaintiff never requested a guarantee, since it already had an existing mortgage as collateral over the Defendant’s other loans and that though the Statutory Declaration was received by the Plaintiff, it was never requested for or accepted to replace a previous collateral, being the mortgage and was only a formality. The finding of the trial Judge at pages 307 and 308 of the Record of Appeal was that, the Statutory Declaration could not have cancelled the mortgage secured as a collateral over the subsisting loan facilities. The trial Judge questioned that if the Statutory Declaration was meant to replace the mortgage, why was the mortgage not discharged and the Title Deeds of the property returned to the Defendant? The learned trial Judge further opined, that a mortgage being better security than a Statutory Declaration, the Defendant failed to establish any reason for this alleged replacement of the collateral. The conclusion of the trial Judge was that no such agreement existed between the parties. A Statutory Declaration which is in itself a self – serving document as held by the Supreme Court in the case of IN RE; ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & ORS V. KOTEY & OTHERS [2003 – 2004] SCGLR 420, is not a contract. It fails to satisfy all requirements of a contract. It is therefore not a guarantee as sought to be argued by Counsel for the Defendant, notwithstanding that the said Statutory Declaration is titled as a guarantee to pay the indebtedness of the Defendant. A Statutory Declaration cannot be considered as a guarantee as same is not within the contemplation of SECTION 14 OF THE CONTRACTS ACT 1960 (ACT 25). Further, there is no clause in the said 20 Statutory Declaration itself, which states that the said Nana Prempeh seeks to secure the loan facilities of the Defendant, as a replacement for the discharge of the existing Mortgage. Also, the Terms of the mortgage were clear that the property was security for the loan. By section 20 (1) OF THE MORTGAGES ACT, 1972 ( NRCD 96 ), a person entitled to redeem a mortgaged property may redeem that property by: “20 (1) (a) performing the acts secured by the mortgage which have yet to be performed, and (b) compensating the mortgagee by payment of interest, costs and any other expenses due in respect of the failure to have timely performance of the acts secured by the mortgage”. By section 22 (1) of the said NRCD 96, a person who redeems a mortgage is entitled to request the mortgagee to issue a written discharge. Since the acts secured by the mortgage were not performed and having failed to establish any agreement or a discharge of the mortgage, the Defendant failed to establish her assertions. The trial Judge therefore, rightly so held, that there was no such agreement to replace the existing mortgage with the Statutory Declaration. This ground of Appeal fails. GROUND E On this ground Counsel for Defendant argued that there was an admission by PW1, that Plaintiff had promised to issue Letters of Credit to the Defendant as well as copious evidence led by the Defendant and DW 1 in corroboration of the said admission. Counsel for Defendant submitted that notwithstanding this evidence, the trial Judge made a finding that the Plaintiff had denied ever agreeing to issue Letters of Credit to Defendant and that she was unable to establish by documentary or oral evidence, that the Plaintiff bank ever agreed to issue her with Letters of Credit. According to Counsel for Defendant, 21 the trial Judge in evaluating the evidence on record, did not take the evidence of DW1 into consideration, in arriving at its findings, when DW1, being at all material times a member of the Board of the Plaintiff bank testified that the Board had agreed to issue the Defendant with Letters of Credit. On this ground, Counsel for Plaintiff argued that the testimony of DW 1, that the Plaintiff had promised to issue Letters of Credit to the Respondent was challenged under cross- examination. Counsel for Plaintiff submitted, that DW1 who was a Board member at all material times, was unable to produce evidence of any Board minutes to establish his assertion. According to Counsel for Plaintiff, having failed to corroborate his assertion, DW1 failed to support the Defendant to establish her counterclaim. At the trial, the Defendant testified that in reliance upon a promise by the Plaintiff to issue Letters of Credit in her favour, she imported certain goods from China. According to her, due to the breach of the promises by the Plaintiff, she incurred significant losses. The evidence adduced by PW 1 was that the Defendant had already ordered the goods from China when she sought assistance in the form of Letters of Credit from the Plaintiff bank. PW1’s evidence on this issue was in fact corroborated by the evidence of DW1. Where evidence of a party on an issue is corroborated by the evidence of the opposing party, while that of the opposing party is uncorroborated, a Court ought not to accept the uncorroborated version in preference for the corroborated version. This was the position of the law taken by the Supreme Court in the cases of OSEI YAW AND ANOR V. DOMFEH [1965] GLR 418 and ASANTE V. BOGYABI AND OTHERS [1966] GLR 232. The Defendant having failed to corroborate her evidence, therefore failed to establish that she ordered goods from China in reliance on any promise from the Plaintiff, as she had already ordered the said goods from China, prior to her request for Letters of Credit. 22 Defendant’s evidence that there was a promise by the Plaintiff to support her by issuing Letters of Credit was supported by DW1, who was a member of the Board at all materials times. From the evidence – in – chief and cross- examination of DW1, he was unaware that there were several meetings between the Defendant and other Officers of Plaintiff on the issue of the Letters of Credit, as he was present at just one meeting, but was not surprised that there were other meetings. DW 1 testified that PW1, the General Manager of the Plaintiff bank was unwilling to assist the Defendant, but was directed by the Board to assist her. From the evidence adduced by PW1, both in evidence in chief and cross- examination, there was no Board decision approving the issuance of Letters of Credit to the Defendant, as all Board resolutions are made in writing and directed to the appropriate officers for action. He admitted however, that he was called by the Board and asked to assist the Defendant whom he informed that he will do his best. From the evidence of PW1, he was aware that the Plaintiff had no authority to issue Letters of Credit as testified to by DW2, but said the Plaintiff could obtain same through its Bankers, CAL Bank. PW1 testified that however, when the company from China sent to him an email upon his request, asking for irrevocable Letters of Credit rather than revocable Letters of Credit, he informed the Defendant that the Bank could not assist her. DW 1 was unable to produce any Board Resolution in writing on the Board’s decision to issue Letters of Credit to the Defendant. Defendant’s own Exhibit 1, written by the Plaintiff to her on the subject of the additional facility in respect of the Letters of Credit stated as follows: “ We acknowledge receipt of your letter asking the Bank to grant you an additional facility in the sum of GH¢ 30,000 to augment your trading. 23 We wish to inform you that it is receiving favourable attention. Even if we are unable to grant your request we shall do our best.” The wording in Exhibit 1 tendered in evidence by the Defendant herself, corroborates the evidence adduced by PW1 that though he had been asked to assist the Defendant, there was no promise made by the Plaintiff to the Defendant that she will be issued with Letters of Credit. It is settled law that where oral evidence is in conflict with an authentic document on the same transaction, a court ought to accept the documentary evidence over the oral evidence. This position of the law is supported by the case of YORKWA V. DUAH 1992/93 GBR 278 at 293 per BROBBEY JSC and FOSUA & ADU POKU V. DUFIE DECEASED & ADU- POKU MENSAH 2009 SCGLR 310. Therefore, from the evidence on this issue, particularly from Exhibit 1, it was established that the Plaintiff did not make a certain promise to the Defendant to issue her with Letters of Credit. It only indicated that it will do its best. Furthermore, the Defendant did not rely on any such promise, to order goods from China, as she ordered the said goods prior to her request for Letters of Credit. A Defendant who files a counterclaim has the same burden of proof as a Plaintiff in a suit, which is to establish her counterclaim on the balance or preponderance of probabilities. The Defendant failed to discharge the burden of proof on this issue in question and did not establish her assertions. See: MALM v. LUTTERODT [1963] 1 GLR 1. The learned trial Judge was therefore not in error, when he made a finding that the Defendant was not able to lead credible evidence to establish that the Plaintiff bank agreed to issue her with Letters of Credit, or that the Board had made any such promise. The Appeal on this ground fails. 24 GROUND F Following the determination on ground E of the Notice of Appeal, that no promise was made by the Plaintiff to issue her with Letters of Credit and that the Defendant in fact ordered the said goods prior to the request for assistance, she cannot attribute her losses if any to the Plaintiff. This ground of appeal similarly fails. The learned Trial Judge was therefore right, in dismissing the counterclaim of the Defendant in its entirety. Consequently, the Appeal succeeds in part only on grounds B and G, as to quantum of the Judgment debt and the interest accruing thereon. Accordingly, the Judgment of the Court below is varied as follows: The Plaintiff is to recover from the Defendant the sum of Forty Three Thousand, Six Hundred and Twelve Ghana Cedis and Twenty- Three Pesewas ( GH ¢ 43, 612.23), being the indebtedness of the Defendant to the Plaintiff, at the date of Judgment. The Plaintiff is also to recover from the Defendant, interest on the said sum due, from the date of the action at the simple interest rate of twenty – seven percent (27%) per annum, until the date of final payment. All other grounds of appeal fail and are dismissed accordingly. Save for the variation above, the Judgment of the Court below is upheld. SGD. HAFISATA AMALEBOBA (MRS) J.A. 25 (JUSTICE OF APPEAL). SGD. I agree: GEORGINA MENSAH - DATSA (MRS) J. A (JUSTICE OF APPEAL). SGD. I also agree: ERIC BAAH J.A. (JUSTICE OF APPEAL) COUNSEL: K. BOYE ATENG ESQ. FOR THE PLAINTIFF/RESPONDENT. KWABENA POKU MENSAH FOR THE DEFENDANT/APPELLANT. 26