National Investment Bank Limited v Midonar Limited and Others (CM/BFS/0498/2020) [2025] GHAHC 105 (8 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD IN ACCRA ON TUESDAY THE 8TH DAY OF JULY, 2025 BEFORE HER LADYSHIP JUSTICE YAA ONYAMEYE GYAKOBO JUSTICE OF THE COURT OF APPEAL SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO. CM/BFS/0498/2020 NATIONAL INVESTMENT BANK LIMITED - PLAINTIFF VRS 1. MIDONAR LIMITED DEFENDANTS 2. MICHAEL KODJO NARTEY 3. PATRICIA ABENA NAKO NARTEY --------------------------------------------------------------------------------------------------------------------- JUDGMENT --------------------------------------------------------------------------------------------------------------------- I. INTRODUCTION 1. On 13th February 2020, the Plaintiff herein sued a writ out of the registry for the following reliefs: 1 a. An order for the recovery of the sum of GHS1,384,806.60 being the outstanding liability on the facility granted to the 1st Defendant; b. Interest on the said sum of GHS1,384,806.60 at the prevailing interest rate from 21st November 2019 till date of final payment; c. Judicial sale of the mortgaged residential property situated and numbered as House NO. ANT/AB 35, North West Achimota, Accra; d. Judicial sale of the mortgaged property designated as Plot No. 2E, 2nd Market Street, Dansoman, Accra; e. Costs. II. PLAINTIFF’S CASE 2. The Plaintiff, a company registered under the laws of Ghana and engaged in the business of banking, pleaded that the 1st Defendant is a registered company and its customer and that the 2nd and 3rd Defendants are directors and guarantors of the facility granted the 1st Defendant. 3. The Plaintiff also pleaded that the 1st Defendant applied for and was granted a term loan by the Plaintiff in the sum of GHS498,844.83 in May 2014, to run for a period of six months at an interest rate of 30% per annum and that the term loan was to run until 22nd November 2014. 2 4. The Plaintiff further pleaded that the facility was secured as follows: a. Legal mortgage over a residential property situated and numbered as House No. ANT/AB 35, North-West Achimota, Accra; b. Existing legal mortgage over plot of land designated as Plot No. 2E Second Market Street, Dansoman High Street, Accra; and c. Joint and several guarantees by the Directors of the company. 5. Plaintiff further pleaded that the 1st Defendant had defaulted in the terms of repayment since its expiration and that the Guarantors had also failed to pay up the facility and further that by the terms of the various contracts executed, the Defendants are jointly and severally liable to pay the total sum owed by the 1st Defendant. 6. It was also the Plaintiff’s pleading that as at 21st November 2019, the 1st Defendant’s total indebtedness stood at GHS1,384,806.60 and that unless compelled by the court, the Defendants would not fulfil their obligations as several attempts to get them to pay up had proved futile. It therefore claimed against the Defendants jointly and severally the reliefs endorsed on the writ of summons stated in paragraph 1 above. III. DEFENDANTS’ DEFENCE 7. By their Statement of Defence filed on 12th June 2020, the Defendants averred that by an offer letter dated 5th August 2013, the Plaintiff granted an overdraft facility in the sum of GHS256,154.01 to the 1st Defendant and that the loan facility was 3 to be retired upon payment of the certificate for work done amounting to GHS190,442.72 and further that the Plaintiff restructured the loan facility for 1st Defendant to prosecute the construction amounting to GHS498,844.83. 8. The 1st Defendant pleaded that it realised that Plaintiff was applying interest and penal interest rates separately on the sums of GHS256,554.00 and GHS498,844.83 as though they were separate loan facilities hence by a letter dated 12th May 2017, it wrote to the Head of Portfolio, Management and Recoveries at Plaintiff’s head office disputing the balance on its account as at 17th April 2017, in the sum of GHS714,462.18. 9. The 1st Defendant pleaded that it requested the Plaintiff to correct the anomalies so detected but the Plaintiff failed, refused and or neglected to correct same thereby compounding and bloating the balance on its account culminating in the balance endorsed on the writ which is inaccurate and disputed. 10. The Defendants further pleaded that the repayment of the loan facilities was subject to payment of the contract sum by the Government of Ghana but to date the 1st Defendant has been paid only a third of the amount which was paid to the Plaintiff and the remainder remained unpaid. 11. The Defendants also pleaded that the project had been halted by the Government creating difficulties in raising certificates for payment to service the debt and that the proceeds that should have accrued from the project was what the repayments were consequent upon. 4 12. It was the Defendants’ pleading that the 1st Obligor was the 1st Defendant and since the project had halted it was not a deliberate attempt of the 1st Defendant to delay repaying the loan facilities and that the Plaintiff was aware of its circumstances regarding the loan and the project nevertheless it wished to prosecute the matter in court as though the 1st Defendant had deliberately reneged on its obligations to Plaintiff. 13. It was the Defendants’ further pleading that the 1st Defendant’s loan account had been wrongly computed hence the balance was inaccurate and that the outstanding balance of GHS1,384,806.80 at the end of 21st November 2019, was heavily bloated and denied owing the said sum as at the end of 21st November 2019, and finally pleaded that the Plaintiff was not entitled to its claim or at all. IV. ISSUES CERTIFIED FOR TRIAL 14. Pre-trial settlement having broken down the following issues were certified for trial on 22nd April 2021: a. Whether or not the Defendants are indebted to the Plaintiff in the total sum endorsed on the Statement of Claim. b. Whether or not the Plaintiff is entitled to the reliefs claimed. c. Whether or not Plaintiff applied interest and penal interest rates separately on GHS256,554 and GHS498,844.83. 5 d. Whether or not Plaintiff’s failure to correct the anomalies in the computation of the interest rates led to the bloating of the outstanding balance on the 1st Defendant’s account. V. PLAINTIFF’S EVIDENCE 15. The witness statement of the Plaintiff’s witness together with attached documents which was filed on 15th December 2023, pursuant to an order of the court dated 13th December 2023, was adopted as his evidence-in-chief on 18th March 2024. One Emmanuel Agyepong, a Loan Recovery Officer of the Plaintiff, testified on its behalf. It was his evidence that the Plaintiff is a company registered under the laws of Ghana, the 1st Defendant, a company registered in Ghana was a customer of the Plaintiff and that the 2nd and 3rd Defendants are directors of the 1st Defendant and guarantors of the facility granted by the Plaintiff to the 1st Defendant. 16. It was also his evidence that the 1st Defendant applied for and was granted an overdraft facility by the Plaintiff in the sum of GHS256,554.01 per an offer letter dated 3rd August 2013 for six months and was subsequently in May 2014, upon a request from the 1st Defendant, converted into a Short-Term loan together with its accrued interest and the limit was raised to GHS498,844.83. 17. The witness testified that the facility attracted interest at the rate of 30% per annum and that the loan was to run until 22nd November 2014. He tendered the Heads of Agreement in evidence as Exhibit “A” and the Guarantee Agreement signed by the 2nd and 3rd Defendants as Exhibit “B”. 6 18. The witness further testified that the facility was secured by legal mortgages over residential property situated and numbered as House No. ANT/AB 35 North- West, Achimota, Accra; An existing legal mortgage over a plot of land designated as Plot No. 2E, 2nd Market Street, Dansoman High Street, Accra; and joint and several guarantees by the directors of the company. 19. It was the evidence of the witness that the 1st Defendant had defaulted with the terms of repayment of the facility and that the guarantors, 2nd and 3rd Defendants, had also failed to pay the facility and that upon demands on the Defendants, the 1st Defendant wrote a letter dated 9th February 2016, requesting for an extension of the loan facility. It was also his evidence that the letter of 9th February 2016, did not dispute the amounts stated in the letter and tendered the letter in evidence as Exhibit “C”. 20. Mr. Agyepong testified that the Plaintiff’s response dated 16th February 2016, stated that before the 1st Defendant’s request could be granted, the Defendants should pay off their initial principal of GHS256,554.01 on or before 29th February 2016. He tendered in evidence Exhibit “D” a copy of the Plaintiff’s response. He also testified that the 1st Defendant wrote to the Plaintiff on 12th May 2017 raising an issue with respect to the calculation of interest rate which was tendered in evidence as Exhibit “E” and that the Plaintiff replied by Exhibit “F” dated 18th September 2017, providing an appropriate explanation to the effect that the overdraft facility of GHS256,554.01 with its accrued interest was converted into a term loan and its limit raised to GHS498,844.83 and that any further interest calculations had been based on the new amount of GHS498,844.83. 7 21. It was his evidence that the term loan expired on 22nd November 2014 and by November 2018, interest had accrued hence the total indebtedness was GHS1,384,806.80 which continued to attract interest and tendered Exhibit “G”, a bank statement of account from 14th July 2011 to 31st May 2021 in evidence. 22. It was also his evidence that per the various contracts executed, the Defendants were jointly and severally liable to pay the total sum owed by the 1st Defendant and claimed against the Defendants jointly and severally the reliefs stated in paragraph “1” above. VI. EVIDENCE OF THE DEFENDANTS 23. The 2nd Defendant Michael Kojo Nartey, the Managing Director of the 1st Defendant, testified on behalf of all the Defendants. His Witness Statement which was filed on 6th July 2021, was adopted as his evidence-in-chief on 17th July 2024. 24. It was his evidence that by an offer letter dated 5th August 2013, the Plaintiff granted an overdraft facility of GHS256,154.01 to the 1st Defendant and that the facility was to be retired upon payment of the certificate for work amounting to GHS190,442.72. He tendered in evidence Exhibit “1” which is a copy of the offer letter of 5th August 2013. 25. It was also his evidence that the Plaintiff restricted the loan facility and further financed purchase of materials for the 1st Defendant to prosecute the construction amounting to GHS498,844.83 and he realised that the Plaintiff was applying interest and penal interest rates separately on the GHS256,554 and on GHS498,844.83 as though they were separate loan facilities. Consequently the 1st 8 Defendant wrote to the Head of Portfolio Management and Recoveries of the Plaintiff disputing the balance on the account as at 17th April 2017, in the sum of GHS714,462.18. He tendered a copy of the letter in evidence as Exhibit “2”. 26. The 2nd Defendant testified that the 1st Defendant requested the Plaintiff to correct the anomalies so detected but the Plaintiff failed, refused and or neglected to correct same compounding and bloating the balance on 1st Defendant’s account culminating in the balance endorsed on the writ and that the outstanding balance was inaccurate. 27. The 2nd Defendant also testified that the repayment of the loan facilities were subject to payment of the contract sum by the Government of Ghana but to date the 1st Defendant had been paid only a third of the amount which said amount was paid to the Plaintiff and that the outstanding balance had not been paid by the Government to enable the 1st Defendant repay the loan facility and further that the project had been stopped by the government creating difficulties in raising certificates for payment at all to service the debt and that the repayment is consequent upon payment by the Government for the project. 28. It was the 2nd Defendant’s testimony that the project had been halted by the Government and that the proceeds that should have accrued from the project was what the loan repayments were consequent upon hence it was not a deliberate attempt of the 1st Defendant to delay in the repayment of the loan facilities. 29. It was also the 2nd Defendant’s testimony that in view of the wrongful computation of 1st Defendant’s loan account as stated in paragraphs 6, 7 and 8 of the Statement of Claim it was inaccurate for the Plaintiff to state the 1st Defendant’s balance as 9 such and that it was heavily bloated and denied owing the sum of GHS1,384,806.80 thus the Plaintiff was not entitled to its claim or any at all. VII. ANALYSIS OF ISSUES, EVIDENCE AND LAW 30. I wish to state, before I continue, that the proceedings which were part heard were adopted by this court, which had been differently constituted, on 22nd November 2024. The issues certified for trial are stated in paragraph 14 above. It is my view that issues 3 and 4, that is, “whether or not Plaintiff applied interest and penal interest rates separately on GHS256,554 and GHS498,844.83” and “whether or not Plaintiff’s failure to correct the anomalies in the computation of the interest rates led to the bloating of the outstanding balance on the 1st Defendant’s account” are all subsumed by issue 1 “whether or not the Defendants are indebted to the Plaintiff in the total sum endorsed on the Statement of Claim”. I will thus discuss issue 1 in tandem with issues 3 and 4. Further, in my view issue 2 “whether or not the Plaintiff is entitled to the reliefs claimed” is all-encompassing. 31. As I have pointed out above, the main thrust of the discussions is stated below: WHETHER OR NOT THE DEFENDANTS ARE INDEBTED TO THE PLAINTIFF IN THE TOTAL SUM ENDORSED ON THE STATEMENT OF CLAIM The burden of proof required in civil matters may be found in Part II of the Evidence Act, 1975 (NRCD 323). Section 11(1) provides as follows: 10 “11(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.” The standard of proof in civil matters is provided for in section 12 of the Act as follows: “12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 12(2) Preponderance of the probabilities means the 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. The standard of proof in civil suits is by a preponderance of probabilities and this was explained in the Supreme Court decision of TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 by Ansah JSC (as he then was) that the standard of proof in civil cases, as required by the rules of evidence is for the Plaintiff to produce evidence sufficient enough to make out his claim on a preponderance of probabilities as defined in section 12(2) of NRCD 323. He explained further that his understanding of the rules in NRCD 323 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict. The Supreme Court said likewise in its decision in GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD v HANNA ASSI [2005-2006] SCGLR 458. 11 32. Section 14 of NRCD 323 provides that “except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. What the provision is saying in essence is that the burden of proof is not static. However, until it so shifts, a party has the burden of persuasion. 33. The Supreme Court further explained the provisions of NRCD 323 in SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER [2012] 2 SCGLR 845 as follows: “The established rule that he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323) s 17(1). “... what the rule literally means is that if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted.” 34. I will be referring to the decisions set out in paragraphs 31 to 33 from time to time in my discussions below. I have already stated that I will discuss the above issue in tandem with issues 3 and 4 that is, “whether or not Plaintiff applied interest and penal interest rates separately on GHS256,554 and GHS498,844.83” and “whether or not Plaintiff’s failure to correct the anomalies in the computation of the interest rates led to the bloating of the outstanding balance on the 1st Defendant’s account”. 35. The Plaintiff averred in its pleadings, that the 1st Defendant is indebted to it in the sum of GHS1,384,806.60 together with interest from 21st November 2019 till date of final payment. This was denied by the Defendants in their pleadings and it was 12 their case that there were anomalies in the computation of the 1st Defendant’s loan accounts hence the balance endorsed on the writ is inaccurate and heavily bloated. 36. It was the evidence of the Plaintiff that the term loan of GHS498,844.83 expired on 22nd November 2014, and that by November 2018 interest had accrued resulting in a total indebtedness of GHS1,384,806.80. The 2nd Defendant in his evidence-in-chief denied owing the sum of GHS1,384,806.80 as at 21st November 2019, and testified that the 1st Defendant’s loan account had been wrongfully computed and that the balance was heavily bloated. 37. In counsel for Plaintiff’s address she argued that the principal and the accrued interest from the 2013 loan together with the restructured loan form the basis of the instant suit and that at the end of 2014 the principal stood at GHS598,776.80 and from November 2014 to 29th November 2018, the accrued interest stood at GHS786,029.90 and when the latter is added to the principal amount, the total indebtedness sums up to GHS1,384,806.00. Counsel for the Defendants in his written address argued that the 1st Defendant’s alleged indebtedness of GHS1,364,806.80 as at 21st November 2019 is non-existent in the accounting books of the Plaintiff and that the exhibit did not demonstrate the alleged indebtedness of the 1st Defendant. 38. The Plaintiff’s witness tendered in evidence Exhibit “G” a copy of the statement of account of the 1st Defendant from 14th July 2011 to 31st May 2021. He was not cross-examined on the exhibit. That notwithstanding the burden lies on the Plaintiff to adduce evidence to prove the indebtedness of the 1st Defendant which it averred was the sum of GHS1,384,806.80 as at 21st November 2019 as outlined 13 in paragraphs 31 to 33 above. I have perused Exhibit “G”. It is a series of bank statements which run from 1st January 2011 to 31st December 2011, 1st December 2012 to 31st December 2012, 1st January 2013 to 31st December 2013, 1st January 2014 to 11th July 2014, 11th July 2014 to 29th January 2021, and 29th November 2018 to 31st May 2021 respectively. The first four statements have the same account number. The fifth bears a different number and the last bears a different number which commences with “LD”. 39. In her written address filed on 11th April 2025, Counsel for Plaintiff urged the Court that Exhibit “G” is a true reflection of the 1st Defendant’s indebtedness. I am afraid I do not share Counsel for Plaintiff’s sentiments in this regard since I have perused Exhibit “G” and I do not see the nexus between Exhibit “G” and the reliefs endorsed on the writ. As I have stated above Exhibit “G” is a series of bank statements. Some of the statements, particularly the first two, predate the period during which the parties entered into the transaction that have culminated in the instant dispute. Further the statements have no connection to the instant suit and the last statement is inexplicable. I am therefore unable to make a finding that Exhibit “G” is a true reflection of the 1st Defendant’s indebtedness. In my view, the Plaintiff has failed to discharge the burden discussed above. I thus fail to find from the evidence adduced before this court that the 1st Defendant was indebted to the Plaintiff in the sum of GHS1,384,806.80 as at 21st November 2019. I am therefore unable to resolve issue “1” in favour of the Plaintiff. 40. Having come to that conclusion I ask myself does that mean the 1st Defendant is not indebted to the Plaintiff? Further what does the evidence and the record before me say? I will answer the aforementioned questions in subsequent discussions. In his evidence-in-chief, the Plaintiff’s witness, Emmanuel 14 Agyepong, testified that the sum of GHS1,384,806.80 was due from the 1st Defendant as at November 2018. It was also his evidence that the 1st Defendant applied for and was granted an overdraft facility for six months and it was subsequently upon his request converted to a short-term loan together with accrued interest and the limit raised to GHS498,844.83. 41. The following ensued during cross examination on 18th March 2024: Q: So, in paragraph 6, you claim to have granted an overdraft to 1st Defendant in the sum of GHS256,554.01 in an offer letter dated 3rd August 2013. Is that the case? A: Yes. Q: Do you have that particular document being the offer document dated 3rd August 2013 before this court? A: That offer letter is not part of the exhibits that I have presented to this court. However, I will like to refer to my Exhibit “E” paragraph 2 which is a letter written by the 1st Defendant to the bank. In the 2nd paragraph, the 1st Defendant agrees and confirms that GHS256,5454.01 which the 1st Defendant acknowledges that the bank advanced to them of which same was converted into a term loan of GHS498,844.83. Q: You would agree with me that an offer letter contains other terms and conditions beyond the amount offered? 15 A: Yes. The following also ensued when the witness was under cross-examination on 20th March 2024: Q: Look at Exhibit A, it is headed Heads of Agreement between the Plaintiff and the 1st Defendant. Is that correct? A: Yes. Q: Exhibit A suggests that there were other agreements that were put together to arrive at Exhibit A. Is that correct? A: Yes. Exhibit A is a consolidation of all the agreements pertaining to the facility. Q: You will agree with me that you did not have all these agreements before this court? A: No. All the agreements are before the court. Q: What are these agreements that were executed before Exhibit A that are before this court? A: I would not call them final agreements before this court. What precedes Exhibit A is an offer letter which was given to the Defendants and when 16 the Defendants accepted the offer, then we went ahead and signed the Heads of Agreement which is Exhibit A. Q: Will you be able to produce the offer letter that was given to the 1st Defendant prior to execution of exhibit A? A: Yes, the bank can make it available to the court. However, Exhibit A has all the agreements. The witness’s evidence to the effect that Exhibit A has all the agreements was not challenged under cross-examination. 42. By their pleadings the Defendants averred that the 1st Defendant was granted an overdraft facility in the sum of GHS256,154.01 and the loan facility was restructured and the Plaintiff further financed purchase of materials for 1st Defendant for construction which amounted to GHS498,844.83. The 2nd Defendant tendered in evidence, Exhibit “2” which is a correspondence from the 1st Defendant and which confirms that as at May 2014, the sum of GHS498,844.83 was due to the Plaintiff from the 1st Defendant. 43. Further under cross-examination on 17th July 2024, the 2nd Defendant who testified on behalf of the Defendants denied that the restructured loan in 2014 came with a new contract between the Plaintiff and the 1st Defendant. However, during cross-examination on 24th February 2025, he admitted that an agreement was signed with respect to the disbursement of the loan in the sum of GHS498,844.83. The following occurred during cross-examination on 24th February 2025: 17 Q: Paragraph 5 of your Statement of Defence as well as paragraph 4 of your Witness Statement, you have confirmed that the Plaintiff restructured the 1st Defendant’s existing loan and raised the amount to a total sum of GHS498,844.83. Is that not so? A: Yes, it is correct. Q: I suggest to you that before the disbursement of the said restructured loan, an agreement was signed by the Plaintiff and 1st Defendant. A: Yes. Q: Kindly take a look at Exhibit “A”, page 10, take a look at the first signature on the right-hand side, that is your signature up there. A: Yes. Q: Go to page 3 of Exhibit “A”, under guarantee, paragraph 3, you were one of the guarantors to the loan. Is that not so? A: Yes. This is an admission by the Defendants’ witness and I will in this regard refer to the decision in SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER (supra). I therefore find from the evidence on record that Exhibit A is the agreement executed between the Plaintiff and the 18 1st Defendant with respect to the loan facilities extended to the 1st Defendant by the Plaintiff. 44. In his written address counsel for the Defendants, argued that the repayment of the loan was subject to the completion and payment of the contract sum by raising certificates. I have already outlined in paragraphs 27 and 28 above, the 2nd Defendant’s evidence to the effect, among others, that the repayment of the loan facilities were subject to payment of the contract sum by the Government of Ghana. 45. I have perused Exhibit A and nowhere in that agreement is it stated that the repayment of the loan is subject to payment by the Government. Furthermore, under cross-examination on 24th February 2025, the Defendants’ witness was unable to substantiate what he had said in his evidence-in-chief when the following ensued. Q: I suggest to you that there is nowhere in Plaintiff’s exhibit “A” that suggests that the repayment of the loan was dependent upon payment of any certificate as indicated in paragraphs 3 and 4 of your witness statement and statement of defence respectively. A: It is not correct. Q: Can you point to any clause or paragraph in Exhibit A that supports your argument? A: It is not true because we have a joint payment between the bank and the company, so any certificate we raise it comes in the name of the bank and the company. 19 The witness was unable to identify any portion of Exhibit “A” in support of his assertions. I therefore find from Exhibit A that the repayment of the loan facilities by the 1st Defendant was not subject to payment by the Government for projects the 1st Defendant was undertaking. 46. I have already pointed out with respect to the Defendants’ assertions that the payments were dependent upon receipts of sums of money from a third party that I am unable to make such a finding since the evidence does not support such a finding. However, if that was the Defendants’ case then they were at liberty to institute Third Party proceedings under Order 15 of the High Court (Civil Procedure) Rules, 2004 (CI 47), however they did not avail themselves of this procedure. 47. Even though under cross-examination on 24th February 2025 and 14th March 2025, the 2nd Defendant stated that some payments had been made to the Plaintiff he was unable to substantiate his assertions. Thus, the assertions were simply assertions and no more. He also admitted under cross-examination on 24th February 2025, that the loan should have been repaid within a period of six months. I will again refer to SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER (supra) and state that I am therefore unable to find that subsequent to 27th May 2014, any payments were made by the 1st Defendant to the Plaintiff in respect of the loan repayment. Consequently, I find that the loan has not been serviced since 27th May 2014 and further that it ought to have been repaid together with interest within six months from 27th May 2014. 20 48. I posed the following question to myself in paragraph 40 before the discussions enunciated in paragraphs 40 to 47 above; “Does that mean the 1st Defendant is not indebted to the Plaintiff?’ Having perused carefully the evidence as set out above I find that as at 27th May 2014, the 1st Defendant’s liability to the Plaintiff was in the sum of GHS498,845.80. I also find that the applicable interest rate as of 27th May 2014 was 30%. 49. By their pleadings the Defendants admitted that the 2nd and 3rd Defendants are directors of the 1st Defendant and guarantors of the facility granted the 1st Defendant. Exhibit “A” is also clear that the directors of the company shall jointly and severally guarantee the facility being the principal and interest. The 2nd and 3rd Defendants also executed Exhibit “B” by virtue of which they jointly and severally guaranteed to the Plaintiff payment of the facility and interest. I therefore find from the evidence that the 2nd and 3rd Defendants together with the 1st Defendant are jointly and severally liable for the repayment of the loan and interest. 50. I have already said that the evidence before me does not support relief “A”. However, from the record and evidence particularly, the evidence of the 2nd Defendant and the admissions made under cross -examination on 17th July 2024, 24th February 2025, and 14th March 2025 respectively there is no dispute that the 1st Defendant is indebted to the Plaintiff. Seeing that there is no legal basis for relief “A” endorsed on the writ and the evidence clearly demonstrating that there is a sum of money plus interest due to the Plaintiff from the 1st Defendant, guaranteed by 2nd and 3rd Defendants, and the evidence supporting the lower claim of the sum of GHS498,844.83, I will on the basis of the overwhelming 21 evidence enter judgment for the Plaintiff against the Defendants jointly and severally for the sum of GHS498,844.83 together with interest at the rate of 30% per annum from 27th May 2014 to date of final payment. 51. The evidence before me does not lay credence to the Defendants’ assertions that the Plaintiff applied interest and penal interest rates separately on GHS256,554 and GHS498,844.83 and that the Plaintiff’s failure to correct the anomalies in the computation of the interest rates led to the bloating of the outstanding balance on the 1st Defendant’s account. Beyond the pleadings and oral testimony to that effect, the Defendants did not produce any contrary figures to rebut those of the Plaintiff beyond the allegations. Again, I will refer to my discussions above and state that it is trite that he who asserts must prove and the Defendants have failed woefully in this regard. I am thus unable to make a finding that the Plaintiff applied interest and penal interest rates separately on GHS256,554 and GHS498,844.83 and further that the Plaintiff’s failure to correct the anomalies in the computation of the interest rates led to the bloating of the outstanding balance on the 1st Defendant’s account and thus resolve issues 3 and 4 in favour of the Plaintiff. 52. With respect to the Plaintiff’s reliefs “C” and “D” which are the judicial sale of the mortgaged residential property situated and numbered as House NO. ANT/AB 35, North West Achimota, Accra and the Judicial sale of the mortgaged property designated as Plot No. 2E, 2nd Market Street, Dansoman, Accra, I find it odd that the mortgages which formed the basis of the claim were not tendered in court and hence do not form part of the evidence before me. Furthermore, as counsel for Defendants rightly pointed out in his address the mortgagors are not parties to the instant suit. In the Supreme Court decision in REPUBLIC v HIGH COURT, 22 ACCRA; EX PARTE CHINTO [1993-1994] 1 GLR 159 the court stated the legal position as follows at page 163 of the report: “The legal position is that since the mortgagor is interested in the equity of redemption, a judgment in a foreclosure action gives him the opportunity of redeeming. If he fails to do so he is foreclosed, and for that matter he must be party, or be sufficiently represented.” The Supreme Court in the EX PARTE CHINTO case held that the judicial sale of the property was void because the owner of the property was not a party to the proceedings. I will thus on the authority of REPUBLIC v HIGH COURT; EX PARTE CHINTO supra hold that reliefs “C” and “D” cannot be sustained. Accordingly, reliefs “C” and “D” fail. 53. In view of the foregoing and my previous holding, I find issue 4 to be moot and there will thus be no need to comment on it. 54. There are some issues which counsel for Defendants raised in his written submissions which I ought to address before I conclude. Counsel raised the issue of estoppel. Estoppel is a defence, which must be pleaded. It cannot be raised in addresses which will amount to ambush litigation. Further, Counsel’s submissions in this regard, in my view, have no merit and I will refer to the decision of the Court of Appeal in SOCIAL SECURITY BANK LIMITED v AGYAKWA [1991] 2 GLR 192 in support and reject Counsel’s submissions in that respect. VIII. CONCLUSION 23 55. In view of the foregoing the Plaintiff will succeed in part and fail in part on its claims. Judgment is hereby entered for the Plaintiff against the Defendants jointly and severally for the following reliefs: a. The lower sum GHS498,844.83 together with interest at the rate of 30% from 17th May 2014 to date of final payment; and b. Costs in the sum of GHS15,000.00 awarded against the Defendants in favour of the Plaintiff. c. Reliefs “C” and “D” hereby fail. (SGD) YAA ONYAMEYE GYAKOBO (J.A) JUSTICE OF THE COURT OF APPEAL (SITTING AS AN ADDITIONAL HIGH COURT JUDGE) COUNSEL NAOMI ASIEDU FOR THE PLAINTIFF GEORGE BEKAI FOR THE DEFENDANTS AUTHORITIES 1. TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 24 2. GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD v HANNA ASSI [2005-2006] SCGLR 458 3. SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER [2012] 2 SCGLR 845 4. REPUBLIC v HIGH COURT, ACCRA; EX PARTE CHINTO [1993-1994] 1 GLR 159 5. SOCIAL SECURITY BANK LIMITED v AGYAKWA [1991] 2 GLR 192 25