Agricultural Development Bank Limited v Animah (C2/7/2020) [2025] GHAHC 185 (27 May 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, SITTING AT SUNYANI, COURT ‘2’ ON TUESDAY THE 27TH DAY OF MAY 2025 BEFORE HER LADYSHIP JUSTICE WINNIE AMOATEY-OWUSU, JUSTICEOF THE HIGHCOURT SUIT NO: C2/7/2020 AGRICULTURALDEVELOPMENT BANK LIMITED PLAINTIFF ACCRA FINANCIAL CENTRE 3RDAMBASSADORIAL DEVELOPMENT AREA RIDGE, ACCRA VRS. JOYCE ANIMAH DEFENDANT PLOTNO. 38,BLK “J”,SECTOR 4 DORMAA AHENKRO Page1of21 JUDGMENT The Plaintiff’s case is that upon an application by the Defendant on 19th April 2017, it granted the Defendant a loan facility of GH¢150,000 subject to terms and conditions contained in a Term Loan document dated 20th July 2017. The purpose of the loan facility was to enable the Defendant expand her poultry business and it was to run for 18 months at an annual interest rate of 27.92% with the Plaintiff making monthly payments of GH¢16,798.86. According to the Plaintiff, the Defendant secured the loan with a first ranking legal mortgage over her house known as Plot No. 38, Block ‘J’, Sector 4, Dormaa Ahenkro in its favor. The Defendant has failed to liquidate the loan as agreed and her indebtedness which stood at GH¢177,831.31 as at 1st January 2019 had risen to GH¢224,930.54 as at 30th September 2019 and the interest continues to accrue. As a result, the Plaintiff issued the writ against the Defendant on 23rd October 2019, claiming against herthe following: i. An order for the recovery of the amount of Two Hundred and Twenty Four Thousand, Nine Hundred and Thirty Ghana Cedis, Page2of21 Fifty-Four Pesewas (GH¢224,930.54) being the Defendant’s indebtedness tothe Plaintiff-Bank asof30th September 2019. ii. An order for the payment of Interest on the amount of GH¢224,930.54 at an interest rate of 27.92% per annum from 30th September2019till thedate offinal payment. Orinthe alternative, iii. An order for the judicial sale of the mortgaged property known as Plot No.38,Block ‘J’,Sector4,Dormaa Ahenkro. iv. Damages for breach of contract; and costs, being costs of and incidental tothis suit. Upon service of the Plaintiff’s writ issued by its solicitor, Vida Agyekum Acheampong on the Defendant on 24th October 2019, the Defendant entered appearance personally on 30th October 2019 and filed her defence on 25th November 2019. By its Reply filed on 24th December 2019, the Plaintiff joined issues generally with the Defendant on her Statement of Defence.The Plaintiff filed Application for Directions on 20th February Page3of21 2020 but the Defendant filed no additional issues. The record shows there were attempts to settle the dispute out of court but the same was unsuccessful. There is further evidence that on 16th March 2021, the Court struck out the case for want of prosecution due to the lack of commitment from the parties. Subsequently on 10th September 2021, the Plaintiff filed Notice of Intention to Proceed pursuant to Order 37 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) and Notice of Change of Solicitor indicating that Elias M. Gli Esq. had been appointed its new solicitor. Once again, the Plaintiff went to sleep after filing the aforementioned processes. On 17th February 2023, the Plaintiff’s counsel filed a Motion on Notice to reinstate the suit. Before the motion would be heard, the Defendant filed Notice ofAppointment ofLawfulAttorney on8th May 2023and attached a Power of Attorney dated 27th April 2023 indicating she had appointed her son, Dr. Prince Asante of the Regional Hospital, Sunyani as her true and lawful attorney to represent her in the suit. The unstamped Power of Attorney was made by the Defendant in Edmonton in the Province of Page4of21 Alberta, Canada. On 19th June 2023, in the presence of the Defendant’s representative, Dr. Prince Asante, the Court granted the order for relistment and directed that the order be served on the Defendant. When all efforts by the Plaintiff to serve the Defendant personally with the order for relistment and a subsequent motion on notice for summary judgment filed on 2nd November 2023 failed, the Plaintiff filed a motion for substituted service on 13th December 2023, and was granted an order on 20th December 2023 for the order for relistment and the motion for summary judgment to be served on the Defendant by substituted service. On6th November 2023, Notice toRevoke Previous Appointment ofLawful Attorney dated 30th October 2023 was filed indicating the Defendant had revoked her son, Dr. Prince Asante’s appointment as her lawful attorney torepresent her in this suit. Romeo Asante Nimo, Esq. filed Notice of Appointment of Solicitor on 16th January 2024 indicating the Defendant had appointed him as her solicitor and followed it with an affidavit in opposition to the motion for summary judgment on 13th February 2024. The Court having heard both counsel on Page5of21 the motion on 12th March 2024, delivered a Ruling on 8th May 2024 dismissing the application and granting the Defendant leave to file additional issues. On 18th June 2024, Application for Directions was taken and the Court ordered the parties to file their witness statements and all other documents. The case was adjourned to 16th October 2024. On 16th October 2024, both the Defendant and her counsel were absent and the record showed that only the Plaintiff had filed its pre-trial checklist and witness statement on 24th September 2024. The Court granted the Defendant 7 days’ extension of time to file her witness statement and other relevant documents and the case was adjourned to 5th November 2024 for Case Management Conference. The Court did not sit on 5th November 2024 and the case was adjourned to 4th December 2024. On 4th December 2024, while Romeo Asante Nimo, Esq. was present as the Defendant’s counsel, the Court gave the Defendant the final opportunity to file her pre-trial checklist and witness statement by 31st December 2024 and adjourned the case for Case Management Conference on 27th January 2025. Page6of21 On 27th January 2025, there was evidence that Romeo Asante Nimo Esq. had that morning filed Notice of Withdrawal of Representation for the Defendant. Since the Defendant was absent and had no representative in attendance, the Court ordered Hearing Notice to be served on the Defendant and adjourned the case to 10th February 2025. Having unsuccessfully attempted to serve the Hearing Notice on the Defendant, the Plaintiff filed a motion for substituted service on 6th February 2025, and was granted an order on 10th February 2025 to serve the Defendant the Hearing Notice relative to the next date, 4th March 2025 by substituted service. On 4th March 2025, the Defendant was represented by her son, Dr. (Med) Prince Asante and there was a letter on record filed on 20th February 2025 written by him and addressed to the Plaintiff requesting a 6-month moratorium to offset the outstanding debt. Since the letter did not directly affect the ongoing proceedings which had already suffered undue delay, and the author was not party to the case, the Court proceeded with the pending scheduled business: Case Management Conference. Again, since the Defendant had failed to file her pre-trial checklist and witness statement despite the numerous opportunities given Page7of21 her, the Court struck out her defence in consonance with Order 32 rule 7(A) (3)(b) of C.I 47 and adjourned the case to 28th March 2025 for the Plaintiff toprove its case. On 28th March 2025, neither the Defendant nor her representative, legal or otherwise was in Court to cross-examine the Plaintiff’s witness although on the last adjourned date, 4th March 2025, the Defendant was represented by her son, Dr. (Med) Prince Asante and is deemed to be aware of next date and scheduled business. A person who has been given the opportunity to be heard but deliberately spurns the opportunity cannot later complain that the proceedings were conducted without hearing him orher. Counsel for the Plaintiff filed his written submission on 19th May 2025, and although belatedly filed, the same has been considered in this Judgment. Page8of21 In Bank of West Africa v. Ackun [1963] 1 GLR 176, it was held that the onusofproofin civil cases depends uponthe pleadingsand the partywho in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The burden of proof in civil cases is provided in Section 10, 11(1) and (4), 12, 14 and 17 of the Evidence Act, 1975 (NRCD 323). The standard of proof is proof on a balance or preponderance of probabilities. In Majolagbe v. Larbi [1959] GLR 190 @ 192, Ollennu J. (as he then was) quoting his decision in Khoury v. Richter stated the obligation or standard of proof as follows: "Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and Page9of21 circumstances, from which the Court can be satisfied that what he avers is true."Seealso Ackah v. PergahTransportLtd. [2010] SCGLR731 The following issues set out in the Plaintiff’s Application for Directions wereset down fortrial: i. Whetherornot theDefendant is indebted tothe Plaintiff asclaimed. ii. Whether or not the Defendant’s failure to pay off the debt at the end of2019isabreach ofherowncommitment. iii. Whether or not the Defendant was privy to the terms of the loan agreement priorto itsexecution. iv. Whether or not the Defendant accepted the terms of the loan agreement prior to its execution and subsequent disbursement of theloanfacility. v. Anyotherissues thatmay arise outofthe pleadings. Apart from issue (v) which is the omnibus issue and therefore will not be discussed because it is no issue by itself, I intend todeal first with issue (iii) and (iv)together, and conclude withissue (i)and (ii) together. Page10of21 On28th March 2025, Louis Tetteh testified for and onbehalf of the Plaintiff, a bank established under the laws of Ghana. He relied on his witness statement filed on 24th September 2024. He testified he is an employee of the Plaintiff stationed at Dormaa Ahenkro whilst the Defendant is the Plaintiff’s customer engaged in poultry business. By an application dated 19th April 2017, the Defendant requested from the Plaintiff the sum of GH¢150,000.00 to enable her expand her poultry business. The loan facility was to run for a period of 18 months at an interest rate of 27.92 % per annum and the Defendant was to make monthly payments over the agreed period to liquidate the loan. By the terms of the Offer Letter, if the Defendant failed to make repayment of any amount due, interest would be charged at 40% from the date on which such amount fell due till the date on which the amounts are actually paid. These terms, according to him, were duly communicated to the Defendant after which she executed the Offer Letter. He testified further that to secure the repayment of the loan and interest thereon, the Defendant executed a legal mortgage in the Plaintiff’s favor over her house known as Plot No. 38, Block “J”, Sector 4, Dormaa Ahenkro. As a further security, the Defendant executed a Page11of21 Contract of Indemnity dated 21st July 2017 in favour of the Plaintiff. He said the Defendant has fully utilized the loan but has failed or refused to repay the same with the accrued interest despite repeated demands on her to do so. As at 16th September 2024, the Defendant’s indebtedness to the Plaintiff stood at GH¢257,658.60 which sum continues to accrue interest at the agreed contractual rate till the date of full and final payment. He tendered Exhibit A (Offer Letter), Exhibit B (Deed of Mortgage), Exhibit C (Contract of Indemnity) and Exhibit D (Defendant’s Loan Statement) in furtherance ofthePlaintiff’scase. From the evidence adduced, the loan agreement between the parties is not in contention. Exhibit A, headed “TERM LOAN” dated 20th July 2017 is a letter emanating from the Plaintiff informing the Defendant of its approval of a term loan for her benefit subject to the terms and conditions contained therein. It is signed by representatives of the Plaintiff and the Defendant and her witness to indicate the Defendant’s acceptance of the terms and conditions. There is indication the Defendant signed in acceptance on 21st July 2017 at Dormaa Ahenkro. Exhibit A corroborates Page12of21 the Plaintiff’s witness’ testimony about the loan amount, tenure and purpose of the loan, the default or penal interest rate of 40 percent and the agreed interest of 27.92 percent per annum. Further, Exhibit A supports the Plaintiff’s witness’ testimony that the Defendant secured the loan with her property at Dormaa Ahenkro. From Exhibit A, the conditions precedent to the disbursement of the loan included the written acceptance of the terms and conditions, provision of security and execution of relevant documentation, submission of professional valuation of the asset used as security and a search report indicating the Defendant has good title tothe asset used assecurity and that the same is notencumbered. Exhibit B, the Deed of Mortgage between the Defendant and the Plaintiff is dated 25th June 2012. It is in respect of the Defendant’s property known as Plot No. 38 Block ‘J’ Sector 4, Dormaa Ahenkro. There is indication the Mortgage Deed was executed in respect of an earlier loan of GH¢73,000 granted to the Defendant and creates a first ranking legal mortgage in favor of the Plaintiff. Per clause 3, apart from the immediate loan, the mortgage also secures any further advances by the Plaintiff to the Page13of21 Defendant and all such sums that from time to time, shall be owing by the Defendant to the Plaintiff as well as interest and any moneys covenanted to be paid by the Defendant. Exhibit C is the Contract of Indemnity executed by the Defendant on 21st July 2017 in favour of the Plaintiff in considerationofthe loandisbursed by the Plaintiff. Exhibit D dated 16th September 2024 is the Defendant’s Loan Statement from 26th July 2017 to 16th September 2024. It shows the Plaintiff made the first loan disbursement of GH¢120,000.00 on 26th July 2017 and the final disbursement of GH¢30,000.00 on 7th September 2017. There is further indicationthat theDefendant’sloanmatured on25thJanuary 2019. It is a principle of law that parties to an agreement are bound by it. In Oppong v. Anarfi [2011] SCGLR 556, the Supreme Court applied this principle of law and stated as follows: “It is therefore settled that a party of full age and understanding would normally be bound by his signature whether he reads, understands it or not particularly in the absence of the requisite evidence that the otherpartymisled him.” Page14of21 Exhibit A, B and C have all been signed by the Defendant and her witness, Asante Appiah. More specifically, Exhibit A which contains the primary terms and conditions of the loan was signed by the Defendant on 21st July 2017,five days before the Plaintiff disbursed the first tranche ofthe loanto her. If the Defendant found any of the terms and conditions unfavourable, she could have used that period to cancel the loan. Yet, she kept quiet and utilized the full loan amount and has defaulted in its repayment. In addition, in the absence of evidence that the Plaintiff misled her into signing the loanagreement, she is bound by it. On issue (iii) and (iv), I find that the Defendant was privy to the terms of the loan agreement prior to her execution and that she accepted the terms and subsequent disbursement ofthe loanfacility toher. Based on Exhibit B, the Defendant should have fully repaid the loan and interest thereon by 25th January 2019. Although Exhibit D shows the Defendant’s indebtedness as at 16th September 2024 stands at Page15of21 GH¢239,674.21, the Plaintiff testified that her indebtedness as at 30th September 2019 stands at GH¢224,930.54, which is the amount endorsed on the writ. It will be observed from Exhibit B that the Defendant has made some repayments after 30th September 2019 till date, but probably insignificant. There is thus, sufficient evidence the Defendant did not fulfill her monthly repayment obligations towards the Plaintiff and I find that her total indebtedness as at 30th September 2019 stands at GH¢224,930.54. Onissue (i) and (ii), I find that the Defendant’s failure toliquidate the loan and interest accruing thereon during the tenure of the loan is a breach of her commitment to the Plaintiff and that she is indeed indebted to the Plaintiff under the loanagreement. In Delmas Agency Ghana Ltd. v. Food Distributors International Ltd. [2007-2008] 2 SCGLR 748 at holding 3, the Supreme Court held that “General damages is such as the law will presume to be the natural or probable consequence of the defendant’s acts. It arises by inference of the law and therefore need not be proved by evidence. The law implies Page16of21 general damage in every infringement of an absolute right.” Having already found that the Defendant’s failure to liquidate the loan within the agreed tenure amounts to a breach of the contract, it is my considered view thatthe Plaintiff should be entitled to damages. Lord Denning MR, in Harbutts Plasticines Ltd. v. Wayne Tank & Pump Co. Ltd (1970) 1 All E.R 225 at page 236 expressed the simple reason for the award of interest as follows: ‘‘… The basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself; so he ought to compensate the plaintiff accordingly.” In the Supreme Court case of Delle & Delle v. Owusu Afriyie [2005-2006] SCGLR 260, their Lordships expressed themselves thus: “Whilst it is true that at common law interest was not payable on a debt or a loan in the absence of express agreement or a course of dealing or custom to that effect, under the existing statutory regime in Ghana, the courts have power to award interest on sums claimed and found to be due. Such interest is payable from the date on whichthe claimarose.” Page17of21 It is provided in Rule 1 of the Court (Award of Interest and Post Judgment Interest)Rules, 2005(C.I52)that: “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, thatinterestshall be calculated a. atthe bank rateprevailing at the time theorderis made, and b. atsimple 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 thecourt shall awardthat rateofinterestcalculated inthat manner “. In this case, Exhibit A executed between the parties bound the Defendant torepaythe loanatthe agreed interestrateof27.92% per annum. In deciding the cost to award, I have taken into consideration the factors under Order 74 of C.I. 47 such as the simple nature of the case, the Page18of21 prolonged proceedings which I attribute to both parties, costs awarded the Plaintiff in the cause and for what purpose, and the amount of filing feespaid bythe Plaintiff which Ihave assessed at GH¢2,310. On the totality of the evidence adduced, I am satisfied the Plaintiff is entitled to the reliefs sought in its entirety. Judgment is entered for the Plaintiff against the Defendant asfollows: i. I order recovery of the sum of GH¢224,930.54 being the Defendant’s total indebtedness to the Plaintiff as at 30th September2019. ii. I order interest on the GH¢224,930.54 at the rate of 27.92% per annum from 30th September 2019 to the date of final payment. Alternatively, I order judicial sale of the collateral property known as Plot No.38,Block “J”,Sector 4,Dormaa Ahenkro. Page19of21 iii. I award general damages of GH¢10,000 for breach of contract. iv. Iaward cost ofGH¢23,000. SGD. WINNIE AMOATEY-OWUSU JUSTICEOF THE HIGH COURT PARTIES: 1. PLAINTIFF REPRESENTED BY NASH BOATENG OWUSU (LEGALASSISTANT) 2. DEFENDANTABSENT LEGALREPRESENTATION: 1. BARNABAS TAG-YANG, ESQ., HOLDING BRIEF FOR ELIAS M.GLI,ESQ., FOR THE PLAINTIFF 2. NOLEGALREPRESENTATIONFORTHE DEFENDANT Page20of21 Page21of21