Best Point Savings & Loans Limited v Samdoe 2002 Limited and Others (C2/021/2022) [2025] GHAHC 169 (10 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 10TH DAY OF JUNE, 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUITNO. C2/021/2022 BESTPOINT SAVINGS &LOANS LIMITED PLAINTIFF VRS 1.SAMDOE 2002LIMITED 2.SAMUELEYRAM AMEKU DEFENDANTS 3.JOHN EYRAMAMEKU JUDGMENT Partiesabsent Roland BoadiGyanappearsforthe Plaintiff Frempong Boamahappearsforthe Defendants 1 INTRODUCTION The Plaintiff issued a writ of summons and statement of claim on 8th February, 2022 claiming thefollowing reliefs against the Defendants; (a) Recovery of an amount of Two Hundred and Twenty Six Thousand Five Hundred and Twenty Three Ghana Cedis Forty Pesewas (Ghs 226.523.40) as at 13thJanuary,2022. (b) Interest on relief (a) from 14th January, 2022 at the contractual rate of 4% per month and penal rate of 0.5% per month on each installment which was not funded onthedue date. (c) Cost (d)Further / or in the alternative an order for the judicial sale of the mortgaged property being a landed property with a building thereon being the property of the2nd Defendant. The Defendants entered conditional appearance on 17th February, 2022 and subsequently filed statement of defence without a counterclaim on 2nd March, 2022 and for that matter waived the conditional appearance. After pleadings closed and 2 application for direction was to be taken Counsel for Defendants prayed the Court to order the Plaintiff to go into account with the Defendants per paragraph (10) of the Defendants’ statement of defence. The Court ordered the Plaintiff to go into account with the Defendants and adjourned the case for the parties to go into account as prayed. Thereafter the parties informed the Court that they intend to settle the matter and the parties further intimated to the Court that the Defendants made a proposal to the Plaintiff but the Plaintiff did not accept it and therefore settlement broke down. Application for directions was taken and the parties were to file their witness statements but the Defendants exercised an option not to file witness statement and not totestify at the trial. The Court delivered its ruling with reference to the case of John Dramani Mahama v. Electoral Commission and Nana Addo Dankwa Akuffo - Addo dated 11th February 2021, Suit No. J1/5/2021 and stated that the Court cannot compel the Defendants to file witness statements and adduce evidence if the Defendants elect not to do so. The Court declined Counsel for Plaintiff’s prayer to the Court to strike out the Defendants’ statement of defence and noted that the Defendants’ election not to file witness statement and to adduce evidence is a risk the Defendants have taken and that the Court would proceed with the available evidence before it. The Court allowed the Defendants to participate in the trial and for Counsel for Defendants to cross – examine 3 the Plaintiff’s witness. Both Counsel were ordered to file written addresses at the end of thetrial. PLAINTIFF’S CASE The Plaintiff is a financial institution incorporated and operating under the laws of Ghana which engages in the business of financial intermediation including lending money to customers. The 1st Defendant is acompany incorporated under the laws of the Republic of Ghana doing the business of civil and electrical engineering. The 2nd Defendant is a Director and shareholder of the 1st Defendant company. The 3rd Defendant is a director of the 1st Defendant company who provided a guarantee to be liable for debts owed by the 1st Defendant to the Plaintiff. The Plaintiff’s case is that it gave the 1st Defendant a credit facility of Three Hundred Thousand Ghana Cedis (Ghs 300,000.00) on 24th March, 2020 to execute its contract with Newmont Ghana Limited. The 1st Defendant was to repay the loan within ten (10) months with interest rate of 4% permonth and in case ofdefault ofanyinstallment apenal interest of0.5% shall prevail. The Plaintiff contends that the facility was secured with landed property belonging to the1stDefendant and the2nd and 3rdDefendants guaranteedthe facility. The total amount claimed by the Plaintiff is Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis Forty Pesewas (Ghs 226,523.40) as at 13th 4 January, 2022 but the Defendants failed to pay the loan. The Plaintiff initiated the present suit to claim the amount of Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis Forty Pesewas (Ghs 226,523.40) as at 13th January, 2022 from the Defendants. The branch manager of the Plaintiff Bank, Sunyani testified on behalf of the Plaintiff but did not call a witness. He tendered exhibit “A”, Credit Facility Offer Letter dated 24th March, 2020, exhibit “B” a Contract of Guarantee dated 25th March, 2020 and exhibit “C”, Statement of Account of Samdoe 2002Limited, the 1stDefendant herein, from1st June, 2020to 29th June, 2023. Under cross – examination the Plaintiff’s witness confirmed that although he knew that before mounting the present action the Defendants should be notified in writing, it did not give the Defendants any such notice as required by law. He further noted that although the Plaintiff did not attach documents of landed property to the processes filed to establish its case, the 1st Defendant broughta leased property which wasregistered with the Lands Commission by the 1st Defendant and the Plaintiff has a copy of the said lease property. WRITTENADDRESS OF COUNSELFOR PLAINTIFF In his written address filed on behalf of the Plaintiff, Counsel for Plaintiff noted that exhibits “A”, “B” and “C” were tendered without objection by Counsel for Defendants. 5 That the amount on the face of exhibit “C” is Ghs 300,000.00 which was disbursed to the 1st Defendant on 26th March, 2020. The starting date of exhibit “C” is 1st January, 2020. Counsel noted that exhibit “C” has on the face of it One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis, Ninety Five Pesewas (Ghs 125, 522.95) dated 6th July, 2023 but it ends on 29th June, 2023 showing the current situation of the 1st Defendant a month before the Plaintiff initiated the present suit. According to Counsel the amount of One Hundred and Twenty Five Thousand, Five Hundred and TwentyTwo Ghana Cedis, Ninety Five Pesewas (Ghs 125,522.95) was not denied by the Defendants and their Counsel following the Defendants’failure to file witness statements and to mount the witness box to challenge the Plaintiff’s claims against them. The Plaintiff led evidence to establish the said amount which is lower than the amount indorsed on the writ of summons and Counsel prayed the Court to enter judgment in the Plaintiff’s favour for One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis, Ninety Five Pesewas (Ghs 125,522.95) instead of Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis, Forty Pesewas (Ghs 226,523.40), the Plaintiff claims in relief (a) indorsed onthe writ ofsummons. Regarding whether or not the Defendants secured the credit facility with landed document, Counsel noted that the Defendants admitted same in their statement of defence so it is not an issue. Concerning whether the Defendants paid Four Hundred 6 and Sixteen Thousand Ghana Cedis (Ghs 416,000.00) into its account in the Plaintiff’s custody to liquidate the loan, Counsel noted that the said claim by the Defendants is a bare assertion without proof following the Defendants’refusal to file witness statement and testify in this matter. It is Counsel’s prayer to the Court to make a determination that the Defendants have not made any such payments to the Plaintiff. Counsel rebutted Counsel for Defendants claim that the Plaintiff failed to give the Defendants demand notice before initiating this suit for which reason Counsel for Defendants prayed the Court to dismiss the Plaintiff’s suit. According to Counsel, upon a careful reading of sections 60 and 61 of the Borrowers and LendersAct, 2020 (Act 1052) the law suggests that notice should be given to the borrower in case of default where the borrowerseeks torealize the security thatwasused forthe credit facility. Counsel contends that because the Plaintiff is not pursuing security that was used to guarantee the loan, sections 60 and 61 of Act 1052 would not apply to the Plaintiff’s reliefs (a), (b) and (c) because the said reliefs do not relate to realization of security. Counsel further noted that nowhere is it stated in the Plaintiff’s claims against the Defendants that the Plaintiff shall give the Defendant notice before making a claim for recovery of an amount owed the Plaintiff. Therefore, the Plaintiff has not breached any law or statute in its claim for reliefs (a), (b) and (c) against the Defendants. It is the case of the Plaintiff per its Counsel that the Plaintiff has not violated a statute and therefore there would not be the need to dismiss the Plaintiff’s suit against the Defendants. 7 Counsel therefore prayed the Court to grant the Plaintiff’s relief (a) by substituting Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis, Forty Pesewas (Ghs 226,523.40) with One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis, Ninety Five Pesewas (Ghs 125,522.95) which appears on the face of exhibit “C” and reliefs (b), and (c). The Plaintiff abandoned its relief (d). THEDEFENDANTS’DEFENCE Although the Defendants did not testify, they stated in their statement of defence that the 1st Defendant obtained a loan of Three Hundred Thousand Ghana Cedis (Ghs 300,000.00) from the Plaintiff with an interest rate of 40% (sic) for ten months. The 1st Defendant procured the said credit facility from the Plaintiff to enable it to execute a contract for Newmont Ghana Gold Limited. According to the 1st Defendant the total amount to be paid to the Plaintiff is Four Hundred and Twenty Thousand Ghana Cedis (Ghs 420.000.00) which include the principal and interest on the said amount. The 1st Defendant’s case is that it agreed with the Plaintiff that monies deposited into its company’s account with the Plaintiff bank should be used to defray the loan. In furtherance of the above the 1st Defendants paid Four Hundred and Sixteen Thousand Ghana (Ghs 416,000.00) into its said bank account in the Plaintiff’s custody consisting of 8 cash deposits and cheque deposits to liquidate the loan. The 1st Defendant prayed the Courtfor the Plaintiff tofurnish it withits bank statement and for the Plaintiff to gointo account withit for resolutionofthe matter. WRITTENADDRESS BY COUNSEL FORDEFENDANTS Counsel for Defendants filed a written address on behalf of the Defendants. His main argument is that the Plaintiff did not lead sufficient evidence to prove its claims against the Defendants. According to Counsel the Plaintiff initiated the suit without giving the Defendants the statutory notice of default in writing for thirty days under Sections 32 and 33 of the Borrowers and Lenders Act, 2008 (Act 773). Counsel therefore prayed the Court to dismiss the Plaintiff’s suit against the Defendants. It is Counsel’s contention that notwithstanding the fact that the Defendants opted not to testify in this matter the Plaintiff is obliged by law to prove its case against the Defendants. That although the Plaintiff claimed that the 1st Defendant had two accounts with it, that is overdraft and loan account, the Plaintiff failed to produce the said accounts to prove its case in accordance withlaw. Counsel therefore prayed the Court to dismiss the Plaintiff’s claim against the Defendants and argued that the Plaintiff claimed that the Defendants secured the loan with mortgaged property being a landed property but the Plaintiff woefully failed to 9 describe the exact mortgage property of the 2nd Defendant. It is Counsel’s contention that since the Plaintiff failed to comply with the Borrowers and Lenders Act by not giving notice to the Defendants before filing the present suit and upon the Plaintiff’s failure to prove its case against the Defendants notwithstanding the Defendants’option not to testify in this suit, the Court should dismiss the Plaintiff’s suit against the Defendants. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW The first issue for determination is “Whether or not the Plaintiffviolated theBorrowers and Lenders Act, 2020 (Act 1052) by failing to give notice to the Defendants before initiating the present suit against the Defendants”. The Plaintiff’s witness admitted under cross examination that although it is aware that in the event of default it is expected to give the Defendants’ notice before mounting the present action, it did not do so. Counsel for Plaintiff vehemently opposed Counsel for Defendants’claim relying on the Borrowers and Lenders Act that upon the Plaintiff’s failure to give notice to the Defendants the Plaintiff’s claims against the Defendants should be dismissed. Counsel cited sections 60 and 61 of the Act and argued that section 60 of the Act is specific on when notice is to be served on the borrower and that is when the Lender seeks to realise security only. Therefore, if the lender is making other claims against the borrower 10 which is not related to the realization of security, sections 60 and 61 of the Act would not apply to the lender. Counsel argued that the Plaintiff’s reliefs (a), (b) and (c) are not related to realization of security and therefore the Act does not apply to the said reliefs because the Plaintiff is not required togive theDefendants notice inthe circumstance. Sections60and 61of the BorrowersandLendersAct, 2020(Act1052) states asfollows; (1) Where an event of defaultarises under a creditagreementand the lender decides to realise the security interest of the lender, the lender shall give a notice of the default to the borrower in writing and request the borrower to pay the amount due within thirty days after the date of the receiptof the notice. (2) Where the collateral is perishable, the period of notice under sub section (1) shall not apply, and the lender shall give a notice of the default to the borrower in writing and request the borrower topay the amountdueimmediately. Section 60 subsections (3), (4), (5), (6) and (7) specify the modes of service of notice to the borrower by hand personally, by registered mail, through a company secretary if the borrower is a corporate body, where the borrower evades service, by posting on his premises or by leaving the notice in the custody of an adult inmate in the borrower’s premises. Service shall be effected on the borrower between 6a.m and 6p.m or publication of default in two daily newspapers of nationwide circulation where three 11 consecutive attempts at service or delivery by hand, courier service, registered mail or any othermeans agreed uponby the lender and borrowerinthe credit agreement fails. It is important to note that Counsel for Defendants quoted the old provisions of the Borrowers and Lenders Act which has been amended in the year 2020 and that the prevailing law is no longer the Borrowers and Lenders Act, 2008 (Act 773) but the Borrowers and Lenders Act, 2020 (Act 1052). Upon reading the relevant provisions of the Act being sections 60 and 61 quoted by Counsel for Plaintiff, the Court is inclined to accept Counsel for Plaintiff’s argument that the thirty day notice required to be given to the borrower under the above Act applies when the lender seeks to realize security interestofthe lender.Section 60(1)ofthe Actstatesunequivocally that; (1) Where an eventof defaultarises under a creditagreementand the lender decidesto realize the security interest of the lender, the lender shall give a notice of the default to the borrower in writing and request the borrower to pay the amount due within thirty days after the date of the receiptof the notice. Counsel for Plaintiff argued that the Plaintiff’s reliefs (a), (b) and (c) which the Plaintiff finally resolved to rely on are not related to realization of security interest of the Plaintiff althoughthe Plaintiff’s relief (d) speaks to that. Inthe light of the foregoing, the Plaintiff having limited itself within reliefs (a), (b) and (c) which in the Court’s view is not related to realization of security, the Borrowers and Lenders Act would not apply. 12 For the avoidance of doubt the Plaintiff’s reliefs (a), (b) and (c) against the Defendants areas follows; (a) Recovery of an amount of Two Hundred and Twenty Six Thousand Five Hundred and Twenty Three Ghana Cedis Forty Pesewas (Ghs 226.523.40) as at 13thJanuary 2022. (b) Interest on relief (a) from 14th January 2022 at the contractual rate of 4% per month and penal rate of 0.5% per month on each installment which was not funded onthedue date. (c) Cost It is instructive to note that although Counsel for Plaintiff intimated that nowhere in the Plaintiff’s agreement with the Defendants had the Plaintiff stated that in the event of default by the Defendant the Plaintiff would give notice to the Defendants, the Court found otherwise. Inparagraph(3) ofexhibit “C”,it is stated asfollows; Upon default by the borrower, the Lender shall notify the Guarantor/Directors in writing of the Borrower’s default outlining the extent of the Borrower’s indebtedness and therefore proceed to enforcethis contract. 13 It is not disputed that the Plaintiff woefully failed to comply with its own term of the agreement. It is however useful to note that the said violation of the Plaintiff although unfair to the Defendants is not fatal since it does not violate any statutory provisions such as the Borrowers and the Lenders Act but the parties own agreement. The Court holds the view that the Plaintiff’s non - compliance with the said paragraph in exhibit “B” could not be used to override the fact that there is an agreement between the Plaintiff and the Defendants. The Defendants have howeverhad notice ofthe suit all the same and the Court holds the view that since the Plaintiff’s violation of paragraph (3) of exhibit “B” does not violate a statute, same is not fatal to the Plaintiff’s case. It is however important to reiterate the need for parties to comply with the terms of contract to ensure fairness and justice. In the light of the above, the Court is of a considered view that there would not be the need to dismiss the Plaintiff’s case as prayed by Counsel for Defendants because the Plaintiff has not violated the Borrowers and Lenders Act as claimed byCounsel forPlaintiff. ISSUE2 Whetheror notDefendantsareindebtedto thePlaintiffto thetuneofGhs226,532.40 Regarding the issue as to whether or not the Defendants are indebted to the Plaintiff to the tune of Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis, Forty Pesewas (Ghs 226,523.40) as at 13th March, 2020 the Court takes 14 notice of the Plaintiff’s exhibit “C” which is the statement of account of the 1st Defendant, Samdoe 2002 Limited from the period 1st January, 2020 to 29th June, 2023. The credit payments made by the Defendant within the period in Ghana Cedis per exhibit “C”are asfollows; 14/02/2020 100.00 20/03/2020 300,000.00 27/04/2020 42,100.00 08/07/2020 42,100.00 17/08/2020 42,100.00 24/09/2020 42,072.33 24/09/2020 42,072.33 25/01/2021 42,073.33 25/01/2021 42,072.33 25/01/2021 42,072.33 25/01/2021 42,070.33 27/01/2021 42,073.33 30/7/2021 40,000.00 15 28/10/2021 40,000.00 The total is Eight Hundred Thousand Nine Hundred andFour Ghana Cedis, Thirty One Pesewas (Ghs 800,904.31). Yet the Plaintiff claims the Defendants still owe the Plaintiff One Hundred and Twenty FiveThousand, FiveHundred and Twenty TwoGhana Cedis, Ninety Five Pesewas (Ghs 125,522.95) on the face of exhibit “C”. Counsel for Plaintiff abandoned the Plaintiff’s relief (a) for Two Hundred and Twenty Six Thousand, Five Hundred and Twenty Three Ghana Cedis, Forty Pesewas (Ghs 226, 523.40) and prayed the Court to grant the Plaintiff the amount of One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis, Ninety Five Pesewas (Ghs 125,522.95). The Defendants claim they have paid a total of Four Hundred and Sixteen Thousand Ghana Cedis (Ghs 416,000.00) to the Plaintiff and they prayed the Court for the parties to go into account. The Court granted the parties adjournment to do so but they failed to reconcile accounts. From the processes filed by the parties and the evidence led by the Plaintiff although the Defendant admits paying Four Hundred and Sixteen Thousand Ghana Cedis (Ghs 416,000.00) to the Plaintiff they did not say that they do not owe the Plaintiff that is why they prayed the Court to go into account to establish howmuch the Defendants owethe Plaintiff. Although the parties tried to go into account during the proceedings and failed, it is in the interest of the Republic that litigation must come to an end. In the circumstance the Court would again order the parties to go into account within one week from today, 16 that is, 17th June, 2025, to establish exactly how much the Defendants have paid to the Plaintiff and how much is outstanding since the Defendants claim to have paid Four Hundred and Sixteen Thousand Ghana Cedis (Ghs 416,000.00) to the Plaintiff out of Four Hundred and Twenty Thousand Ghana Cedis (Ghs 420,000.00) and the Plaintiff claims per exhibit “C” that the Defendants have paid Eight Hundred Thousand, Nine Hundred and Four Ghana Cedis, Thirty One Pesewas (Ghs 800,904.31) out of Nine Hundred and Twenty Six Thousand Four Hundred and Twenty Seven Ghana Cedis, Twenty Six Pesewas (Ghs 926,427.26) with One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis, Ninety Five Pesewas(Ghs 125,522.95) outstanding. CONCLUSION Both Counsel for Plaintiff and the Defendants agreed before the Court that the Plaintiff has abandoned its relief (a) for Ghs 226, 523.40 (Two Hundred and Twenty Six Thousand Five Hundred and Twenty Three Ghana Cedis Forty Pesewas) with interest. Instead the Plaintiff prays for One Hundred and Twenty Five Thousand, Five Hundred and Twenty Two Ghana Cedis Ninety Five Pesewas (Ghs 125,522.95) in addition to cost of Twenty Thousand Ghana Cedis (Ghs 20,000.00). The total sum of One Hundred and 17 Forty Five Thousand Five Hundred and Twenty Two Ghana Cedis Ninety Five Pesewas (Ghs 145,522.95)is what the Plaintiff isentitled toagainst the Defendants. In the light of the foregoing, the Court hereby enters judgment in favour of the Plaintiff in the sum of One Hundred and Forty Five Thousand, Five Hundred and Twenty Two Ghana Cedis Ninety Five Pesewas (Ghs 145,522.95) including cost of Twenty Thousand Ghana Cedis (Ghs 20,000.00)againstthe Defendants. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 10TH JUNE 2025 18