DARKO VRS. AMENFIMAN RURAL BANK (BFS/08/2024) [2025] GHAHC 51 (20 January 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON MONDAY 20TH DAY OF JANUARY 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE -------------------------------------------------------------------------------------------------------------- SUIT NO. BFS/08/2024 GODFRED NANA ADU DARKO - PLAINTIFF T/A REV GODDY ENTERPRISE SANTASI - KUMASI VRS AMENFIMAN RURAL BANK - DEFENDANT OPP WASSA AKROPONG TRADITIONAL PALACE WASSA AKROPONG ------------------------------------------------------------------------------------------------------- TIME: 2:43PM. JUDGMENT: In the Plaintiff’s substantive relief, he claims against the Defendant, an Order compelling the Bank, to release the deed of discharge on H/No. Plot 5, 1st Avenue, Aboabokese, Atwima-Kwanwoma District, Ashanti to him. This relief, from the evidence before the Court, is contingent on Exhibit “B”. This Exhibit is Terms of Settlement executed between the parties in Suit No. BFS/12/2021, entitled: Amenfiman Rural Bank Ltd 1 Vs 1. Rev Goddy Enterprise 2. Gloria Poku In pleading, it was contended by Plaintiff at paragraph 19 of his Statement of Claim that, he fulfilled his obligation under the Terms of Settlement before September, 2023. The basis for Plaintiff stating that, he fulfilled his obligation under Exhibit “B”, the Terms of Settlement was pleaded in paragraphs 17 and 18 of the Statement of Claim as follows: “17. The Plaintiff states that on 5th July 2023, he received a message from the Senior Credit Officer of the Defendant (Felix Barfo) which stated that his total outstanding debt was Sixty-Three Thousand, Three Hundred and Fifty-Three Ghana Cedis (GH₡63,353.00). 18. The Plaintiff further states that based on the amount stated by the Felix Barfo, he made a one-time payment of the Sixty-Three Thousand, Three Hundred and Fifty-Three Ghana Cedis (GH₡63,353.00) on 13th July 2023.” At paragraph 2 of the Statement of Defence, the Defendant denied the above averment of the Plaintiff, that is paragraphs 17 and 18 of the Statement of Claim. The onus of proof is therefore on the Plaintiff to proof that, he paid an amount of GH₡63,353.00 as full and final settlement of his indebtedness to the Defendant Bank. See Sections 10(1) and 11(1) of the Evidence Act, NRCD 323. 2 To proof payment of the said GH₡63,353.00, as full and final settlement, the Plaintiff tendered Exhibits “D”, “D(1)”, “D(2)”, “D(3)” and “E” . Evaluation of Exhibits “D), “D(1)”, “D(2)”, “D(3)” and “E”. The Court reproduces the conversation that took place between the said Felix Barfo representing the Defendant Bank and the Plaintiff: “Exhibit “D”: Felix Barfo A…. Wednesday, Jul 5, 2023. 10:44AM Texting with Felix Barfo (SMS/MMS) Your pastdue bal is GH₡63,353 as at today 5/06/23 Pls let me know when you are Making payment Is that the total outstanding debt Exhibit “D(1)”: Felix Barfo A…. Is that the total outstanding debt from your records right? Is pastdue bal. What you are expect to pay by now and yet to be paid 3 It is as at today Wednesday, Jul 5, 2023. 2:37PM Exhibit “D(2): Felix Barfo A… It is as at today Wednesday, Jul 5, 2023 . 3:37PM By the date you Mean 5/7/23 and not 5/6/23 right? Pls So when should we expect payment pls? 2:41PM Exhibit “D(3)”: Felix Barfo A... Wednesday, Jul 5, 2023 . 2:39PM RCS chat with Felix Barfo This chat is now end-to-end Encrypted Learn more 4 Yes 2:39PM.” At paragraphs 23, 24 and 25 of his Witness Statement, the Plaintiff testified that, on 5th July, 2023, he received a phone call from the Senior Credit Officer of the Defendant Bank, Felix Barfo, in respect of repayment of the Loan. He further continued that, Felix Barfo followed, the phone call, with a text which stated that, his total outstanding debt was GH₡63,353.00. The Plaintiff tendered Exhibit “D series” as his chat with Felix Barfo. At paragraph 28 of his Witness Statement, the Plaintiff tendered his Accounts Statement which according to him show the payment and deduction of the GH₡63,353.00 as Exhibit “E”. A juxtaposition of Exhibits “D” and “E” is significant in relation to Exhibit ”B”, the Terms of Settlement. The Plaintiff was required by the Defendant Bank speaking through Felix Barfo to pay the GH₡63,353.00. This amount was stated per Exhibit “D series" to be Plaintiff's outstanding balance as at 5th June, 2023. The question is, did the Plaintiff pay the GH₡63,353.00 on 5th June, 2023, the date on which that specific amount was due? The answer can be found in Exhibit “E”. Per this Exhibit, the Plaintiff’s Account was debited with the cheque deposit of GH₡63,353.00 on 13th July, 2023. So, the Plaintiff did pay the said GH₡63,353.00 on 13th July, 2023? At paragraph 27 of his Witness Statement, he testified as follows: 5 “Although I did not want any litigation about the figure, I went ahead and made a one-time payment of the Sixty-Three Thousand, Three Hundred and Fifty-Three Ghana Cedis (GH₡63,353.00) on 13th July, 2023, in fulfilment of my obligation under the Terms of Settlement.” Exhibit “B”, the Terms of Settlement provided at paragraph 5 as follows: “Any default in the monthly payment of GH₡5,917.00 starting from September, 2021, shall attract Interest at the prevailing bank rate.” Does it lie in the mouth of the Plaintiff to say that, he made a one-time payment in fulfilment of his obligation under the Terms of Settlement without bothering to factor the Interest that has accrued on his indebtedness between 5th June, 2023 and 13th July, 2023. The Court finds that, as at 13th July, 2023, the Plaintiff had not made a full and final payment of his outstanding indebtedness to the Defendant Bank. This will not have been so, had the Defendant paid the GH₡63,353.00 on 5th June, 2023, instead of 13th July, 2023. The Plaintiff is bound by the Interest payment he contracted with the Defendant Bank in Exhibit “B”. The Court therefore finds that, the Plaintiff had not fully and finally liquidated his Loan Liability owed to the Defendant Bank under the terms of Exhibit “B”. It is for this reason that, this Court refuses to grant relief (1) of the Plaintiff for an Order compelling the Defendant Bank to release the Deed of Discharge on H/No. 6 Plot 5, 1st Avenue, Aboabokese, Atwima-Kwanwoma District, Ashanti to him. Relief (1) of Plaintiff is dismissed. The Plaintiff per his relief (2) claims against the Defendant, an Order compelling the Bank to refund monies in the sum of GH₡11,833.30 he claims was unlawfully deducted from his Account on 19th July, 2023, without his consent or authorisation. Having stated at paragraph 19 of his Statement of Claim that, he fulfilled his obligation under the Terms of Settlement before September, 2023, he further averred that, the Defendant did not make any further demand on him as he had finished paying off the Loan and Overdraft. He stated further that, the Defendant Bank called Gloria Poku who was also one of the guarantors of his loan facility and informed her that, he owed the Bank an outstanding amount of GH₡11,833.30 which was untrue. The Plaintiff averred at paragraph 24 of his Statement of Claim that, the Defendant made a demand on Gloria Poku to pay the GH₡11,833.30 and that, the demand is unethical, unprofessional, unreasonable and unlawful. The Plaintiff says that, Gloria Poku on 18th July, 2023, deposited GH₡11,833.30. In response, the Defendant explained that, Gloria Poku who is the Plaintiff’s Wife, a Guarantor to the facility and a party to the suit called the Defendant to know for herself the total indebtedness of the Plaintiff and when same was shown her she made payment in full satisfaction of the Judgment Debt owed by the Plaintiff. The Defendant contended that, there has not been any unauthorised deduction of the GH₡11,833.30 and that, the only deductions made were in fulfilment of loan facility the Plaintiff was servicing at the time. 7 The question is, did the Defendant Bank deduct GH₡11,833.30 from the Plaintiff’s Account and if yes, was the deduction unlawful? The Defendant at paragraph 19 of its Defence denied any unauthorised deduction of GH₡11,833.30. From Defendant’s pleading in its entirety, having regard to paragraph 19, the Court understands the Defendant, when it says that, there has not been any unauthorised deduction of GH₡11,833.30 to mean that, it deducted GH₡11,833.30 but same is lawful because in its view, the deduction was in fulfilment of the loan facility. The lawfulness or unlawfulness is dependent on whether the parties contracted that, an amount paid into the Plaintiff’s Account can be debited in satisfaction of his indebtedness. The Court finds none and the Defendant Bank has not shown that, there is an agreement with the Plaintiff, to make deductions from his Account in satisfaction of his indebtedness to the Bank. The Court finds as a fact that, the Defendant Bank deducted GH₡11,833.30 paid into the Plaintiff’s Account by his Guarantor, Gloria Poku. The Court further finds that, the Bank without the consent or authorisation of the Plaintiff deducted the amount and same is therefore unlawful and a Breach of Contract. The scenario would have been different if the Guarantor who was bound by the Contract of Guarantee to pay Plaintiff’s indebtedness arising out of default, had paid the said amount personally to the Bank instead of payment into Plaintiff’s Account. In that case, the Plaintiff cannot complain. 8 The Court notes that, it does not matter that, the Plaintiff owes the Bank. The Bank cannot use unlawful means to obtain remedy by self help in the manner it did. The remedy for Breach of Contract is damages. Same may be general damages or special damages. Since the amount in issue is liquidated in nature, general damages cannot be awarded against the Defendant, See Fofie v Pomaa & Ors [1974] 2 GLR 6 @ 11 per Osei Hwere J, High Court. The Court awards the liquidated sum of GH₡11,833.30 as special damages in favour of the Plaintiff against the Defendant for Breach of Contract. The relief for refund of GH₡11,833.30 as couched in relief (2) is refused. The Court refuses to grant Interest on the award of damages of GH₡11,833.30 to Plaintiff as same is an adequate compensation of any injury caused to the Plaintiff by the Defendant. The Court refuses to Order Defendant to render apology to the Plaintiff in the terms of relief (4) by reason that, the disclosure of Plaintiff’s indebtedness to Plaintiff’s Guarantor, Gloria Poku is lawful and not a Breach of Contract. The Guarantor is entitled to be informed of the indebtedness of her Principal by the Lender. Had the apology demanded been contingent on a different ground other than the said disclosure by the Defendant, same may have found favour with the Court. In this case, Gloria Poku is not just any Third-Party but a Guarantor to the facility granted by the Bank to the Plaintiff and is liable severally and jointly in the event of her Principal’s default of the Loan that she guaranteed. 9 Relief (4) is refused. Reliefs (5), (6) and (7) of the Plaintiff’s reliefs are also refused. There is no evidence of Solicitor’s Fee in this suit. The Defendant’s reliefs (a) and (b) of the Counter-Claim is granted as same is clearly evidenced by paragraph 4 of Exhibit "B". The Court grants Defendant’s relief (c) of the Counter-Claim on the evidence of Exhibit “7” tendered without objection. Exhibit “7” stands unchallenged and provides clear proof of the sum of GH₡28,010.26 as Plaintiff’s indebtedness as at 31st July, 2023. The Court grants relief (d) of the Counter-Claim and awards Interest at the prevailing bank rate on GH₡28,010.26 from the date of this Judgment till date of final payment as contractually agreed according to paragraph 5 of Exhibit “B”, the Terms of Settlement between the parties therein. No costs is awarded in favour of the Defendant. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Nana Yaa Konadu Aninkorah holding the brief of Richard Obeng Mensah for the Plaintiff. Yaw Nkansah Abankroh holding the brief of Diana Essien for the Defendant. 10