SOCIETE GENERAL GHANA LTD VRS. JT COMMERCIALS LTD (CM/RPC/0535/2021) [2024] GHAHC 467 (26 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT THE COMMERCIAL COURT DIVISION “8” LAW COURT COMPLEX ACCRA ON 26TH NOVEMBER 2024 BY HER LADYSHIP JUSTICE MAVIS AKUA ANDOH (MRS). ======================================================= SUIT NO: CM/RPC/0535/2021 CORAM: MAVIS ANDOH J (MRS). ------------------------------------------------------------------------------- BETWEEN SOCIETE GENERAL GHANA LTD ======= PLAINTIFF HEAD OFFICE, RING ROAD CENTRAL KOKOMLEMLE-ACCRA VRS JT COMMERCIALS LTD ======= DEFENDANT BEHIND SOCIETE GENERAL, GHANA LTD FAANOFAA ROAD BRANCH, ACCRA P.O BOX 232, MAMPROBI. PARTIES: PLAINTIFF REPRESENTED BY KOFI TANDOH. DEFENDANT ABSENT. ======================================================= JUDGMENT ======================================================= The Plaintiff on 6th October 2020, caused to be issued out of the Registry of this Court, a Writ of Summons and Statement of Claim against the Defendant for the following reliefs; 1. Recovery of the sum of Seventy Eight Thousand, Six Hundred and Eighty One Ghana Cedis Eighty Two Pesewas (GH¢78,681.82) being the outstanding balance and accrued interest as at 30th June 2020 on money Defendant had overdrawn on its account with Plaintiff which it had failed to reimburse. 1 | P age 2. Interest on the said amount of (GH¢78,681.82) at the prevailing lending rate of Plaintiff from 1st July 2020 until date of final payment. 3. Cost 4. Any further order(s) as the Honorable Court may deem fit. BRIEF FACTS The brief facts that have snowballed into this action are given as follows. The Plaintiff is a Bank which carries its business at its Faanofaa Branch in Accra and elsewhere in Ghana with the Defendant as one of its customers at the said branch. In January 2016, the Plaintiff allowed the Defendant to overdraw its account to the tune of GH¢42,565.48. This was after the Defendant had on or about the 8th of January 2016, issued a cheque in the sum of GH¢57,773.68 in favor of Accra Brewery Limited, and drawn on its account with the Plaintiff. Even though the Defendant did not have enough funds in its said account to meet the face value of the cheque, the Plaintiff nonetheless honored the cheque. According to the Plaintiff, the Defendant has failed or neglected to reimburse the Plaintiff for the overdrawn account, despite repeated demands made on it and as of 30th June 2020, the Defendant was indebted to Plaintiff to the tune of GH¢78,681,82 made up of the money overdrawn by the Defendant and accrued interest. The Plaintiff therefore sued the Defendant for the reliefs endorsed on the Writ of Summons and accompanying Statement of Claim. When the Defendant was served with the Writ via substituted service, it entered an appearance to the action through its Counsel on 2nd March 2021and on 23rd March 2021, filed a 20- paragraphed Statement of Defence and Counterclaim, denying each and every averments made by Plaintiff in its Statement of Claim, partly admitting some. 2 | P age According to the Defendant, it neither held any standing order nor signed a mandate that gave Plaintiff the permission to take funds from Defendant’s accounts to grant or give top - ups on Defendant’s cheque issued to third parties as alleged by Plaintiff. Contrary to the allegations of the Plaintiff, Defendant never authorized the specific alleged top- up mandate or privilege, nor was she notified of same after its occurrence in respect of cheques she issued to third parties while in active business. According to the Defendant, the top- up purportedly drawn on its accounts was not authorized by the Defendant, and Plaintiff committed serious discrepancy on its account and the alleged GHS78, 681.82 figure arrived at alleged to be overdrawn on its account is inclusive of interest repayment, un-notified charges as well as penal interest amongst others. The Defendant contends that, it has unnecessarily incurred the alleged debt and or charges and suffered considerable inconvenience and frustration by the failure of the Plaintiff to notify the Defendant of the said transaction or require authorization from Defendant of same to enable it receive reasonable notice of the transaction. Counterclaim The Defendant counterclaimed as follows; i. An order for reconciliation of accounts between the parties. ii. An order directed at the Plaintiff to waive any or all debt/charges accrued as a result of Plaintiff’s failure to notify Defendant of the top up transaction or require authorization from the Defendant in respect of the said transaction iii. An order directed at the Plaintiff to waive all interest, charges, and penal interest calculated, accrued and or charged on Defendant’s account in respect of the top up transaction. iv. Cost including solicitors fees. v. Any other relief as to the Court seems meet. REPLY The Plaintiff in its Reply and defence to Counterclaim filed on 30th April 2021, joined issues with the Plaintiff on its Statement of Claim and 3 | P age denied the averments in the Counterclaim saying that the Defendant’s Statement of Defence and Counterclaim is a sham meant to buy time for it. The Plaintiff contended that, save for the order for the reconciliation of Defendant’s accounts with Plaintiff, the Defendant is not entitled to its counterclaim and same should be dismissed. PRETRIAL SETTLEMENT The matter being Commercial in nature, was first referred to the pretrial Judge for the mandatory pretrial settlement conference. The Defendant did not take part in the mandatory pretrial session. Thereby pushing the matter to trial. Having failed to settle the matter at the pretrial settlement conference, the following issues were set down for the Court’s determination. ISSUES 1. Whether or not Defendant on 8th January 2016 issued a cheque in the sum of GH¢57,773.86 in favour of Accra Brewery Limited and drawn on its account with the Plaintiff. 2. Whether or not the Defendant’s account with the Plaintiff was fully funded as of 8th January 2016 for the Defendant’s cheque in the sum of GH¢57, 773.86 to clear. 3. Whether or not the Plaintiff honored Defendant’s cheque in the sum of GH¢57,773.86 presented to it even though its accounts with it was not fully funded. 4. Whether or not the Defendant has reimbursed Plaintiff for the sum of GH¢42,565.48 being the shortfall in Defendant’s account with the Plaintiff when the Plaintiff honoured Defendant’s cheque drawn on Plaintiff in favour of Accra Brewery Limited in the sum of GH¢57,773.86. 5. Whether or not the Defendant as at 30th December 2020 was indebted to Plaintiff in the sum of GH¢78,681.82. 4 | P age 6. “Whether or not the Defendant is entitled to its counterclaim”. Even though the parties together with the pretrial Judge, did not set down the 6th issue, I am of the view that, the issue of “Whether or not the Defendant is entitled to its counterclaim” can be set down and considered by the Court since it is borne out of the pleadings. It is sound basic learning that, Courts are not tied down to only issues identified and agreed upon by the parties at pretrial. If a crucial issue is left out, but emanates at the trial from the pleadings or the evidence, the Court cannot refuse to address it on the ground that it is not included in the agreed issues. See the case of Fattal v Wolley [2013] 2SCGLR 1070 @ Page 1070. And Environmental Development Group Ltd V Provident Insurance Co Ltd & 2 Ors. [2020] 165 GMJ 39 SC. Based on the above authorities the Court set down the 6th issue of whether or not, the Defendant is entitled to its counterclaim. WITNESS STATEMENTS The parties filed their respective witness statements that they would rely on during the trial, as well as their checklists as directed by the Court differently constituted. It is worth mentioning that, the Plaintiff filed the witness statement of its witness, and attached all documents it would rely on during the trial as well as its checklist. The Defendant, even though it filed its witness statement and checklist did not attach any exhibits in support of its claim. TRIAL Trial commenced on 25th January 2024, with Plaintiff testifying through its witness, Lydia Mingle who described herself as the Deputy Branch Manager of the Plaintiff’s Faanofaa Branch. The witness relied on her Witness Statement filed on 1st December 2022 and her attached exhibits “A”,”B” and “C” as her evidence in chief. Counsel for the 5 | P age Defendant when given his turn to cross- examine the Plaintiff’s witness, waived his right to cross examine the Plaintiff’s witness. Instead, he informed the Court that, since the case borders on financials, the Defendant’s witness herself would cross – examine the Plaintiff’s witness. Written Addresses After the trial, both Counsel for the Parties were directed by the Court to file their respective written addresses. They both complied by filing same which the Court considered and will refer to excerpts from their Addresses where necessary. BURDEN OF PROOF In determining this matter, it is important to set out what the law states in respect of a party on whom lies the burden of proof in all civil matters. It is settled under our jurisprudence that, a party who asserts, assumes the burden of proving same. The law on the burden of proof in Ghana is governed by the Evidence Act, 1975, Act 323, and the common law maxim, “he who asserts, must prove”, lays the foundation of the law that, each party who makes a specific assertion or assertions must lead cogent and convincing evidence on the preponderance of the probabilities to prove the assertion or assertions claimed. Section 11(4) of the Evidence Act, Act 323 provides that, 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. See the case of Bank of West Africa Ltd V Akun 1963 1GLR 176. 6 | P age Section11(4) of the Evidence Act supra, puts the obligation in civil proceedings on a party who asserts to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact is more probable than its nonexistence. Again, by Section 11 (4) of the Evidence Act, Act 323 the burden of producing evidence is discharged when a party produces sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its nonexistence. In the case of Takoradi Flour Mills Vrs Samir Faris [2005- 2006] SCGLR 882, the Supreme Court per Ansah JSC as he then was, exhaustively dealt with the burden of proof at pages 896-998 of the report as follows, “A great deal of the submissions made on behalf of the second defendant in support of the grounds of appeal centered on the burden of proof or the onus probandi, by which it is the duty of the party who asserts the affirmative, to prove the point in issue…as it was the plaintiff who made a claim and asserted the positive, he had to adduce evidence sufficient to establish a prima facie case, as required by Section 14 of the Evidence Decree 1975,because in law where a fact is essential to a claim, the party who asserts the claim has the burden to persuade the Court of the existence of that fact…” The authorities on this area of the law are legion, and in this regard cases such as Fosua & Adu Poku V Dufie (Deceased) And Adu Poku- Mensah [2009] SCGLR 310. Kusi & Kusi V Bonsu [2010] SCGLR 60 are apt. The burden of producing evidence as well as the burden of persuasion is cast on such a party and the standard of proof required 7 | P age to discharge the burden of persuasion in civil matters is one of preponderance of the probabilities. This principle has been given statutory recognition by Section 12 (1) of the evidence act NRCD 323. From these decided cases cited supra, it is clear that the Plaintiff in civil proceedings, particularly in this case has the burden of proving its case on the preponderance of the probabilities to require a consideration if any, in the Plaintiff’s favour. Evidential support of Plaintiff’s claim The Plaintiff in support of its claim tendered in the following documents as exhibits. 1. Exhibit A – a Societe Generale Ghana, Faanofaa cheque Number 0001400600006990578 with date 08-01-2016 with the face value of Fifty Seven Thousand, Seven Hundred and Seventy Three Ghana Cedis Sixty Eight Pesewas (GHS57, 773.68) payable to Accra Brewery Limited. 2. Exhibit B- a Societe Generale Ghana Statement detailing all transactions from 6th January 2016 to 30th June 2020. 3. Exhibit “C” – A letter written by Counsel for the Plaintiff with the heading “Indebtedness to Societe Generale Ghana Limited” Attention: Joyce Allotey and William Nii Kwatei Quartey. COURT’S ANALYSIS AND OPINION I deem it necessary to analyze the issues now. I shall analyse issues 1, 2 and 3 together since they are interlinked which are as follows; 8 | P age i. Whether or not Defendant on 8th January 2016 issued a cheque in the sum of GH¢57,773.86 in favour of Accra Brewery Limited and drawn on its account with the Plaintiff. ii. Whether or not the Defendant’s account with the Plaintiff was fully funded as at 8th January 2016 for the Defendant’s cheque in the sum of GH¢57,773.86 to clear. iii. Whether or not the Plaintiff honored Defendants cheque in the sum of GH¢57,773.86 presented to it even though its accounts with it was not fully funded. COURTS ANALYSIS OF THE ISSUES The Plaintiff, in both its pleadings and evidence during the trial maintained through its witness that on 8th January 2016, the Defendant issued a cheque with a face value of GH¢57,773.68 payable to Accra Brewery Limited, and at the time the cheque was issued by Defendant, it did not have enough funds in its accounts with the bank to meet the face value of the cheque. The Plaintiff’s witness testified that, despite the fact that, there was not enough funds in the Defendant’s account at the time the cheque was issued, it still went ahead to allow the Defendant to overdraw its account to the tune of Forty Two Thousand, Five Hundred and Sixty Five Ghana Cedis, Forty Eight Pesewas (GH¢42,565.48). In support of this claim, the Plaintiff’s witness tendered in evidence Exhibit “A”, which is a copy of the cheque with the face value of GH¢57,773.68. The Plaintiff’s witness testified that, the cheque was honoured because the Plaintiff has a long standing banking relationship with the Defendant and does allow the Defendant from time to time to 9 | P age overdraw its accounts as a way of supporting Defendant’s business and Defendant would always reimburse the Plaintiff for whatever amount that was overdrawn together with interest at the Plaintiff’s prevailing lending rate. The tussle between the parties now is that, with the evidence that the Plaintiff allowed the Defendant to overdraw its account, the Defendant has failed, neglected or refused to reimburse the Plaintiff for the overdrawn amount despite various demands made on the Defendant. This has led to the whooping indebtedness by Defendant to Plaintiff, of the amount of GH¢78,681.82 inclusive of interest as at 30th June 2020. The Defendant has denied the claims made by the Plaintiff and in its defence has stated that, the purported transaction made in favor of Accra Brewery Limited and drawn on its account was not authorized by the Defendant and neither was it notified of same after its occurrence in respect of Exhibit “A”, which is the said cheque. In the midst of this assertion and denial, the onus therefore laid on the Plaintiff to prove its claim and this it does by producing evidence in prove of its claim. In the case of Zabrama v Segbezdi [1991]2 GLR 221 @ 224 Kpegah J.A as he then was, held as follows “… a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred, the nature of each averment or assertion determines the degree and nature of the burden.” 10 | P age This position of the law has been affirmed in the case of Yaw Selorm V The Commissioner, Ghana Revenue Authority [2019] 136 GMJ 22 CA @ 50. Also, the Supreme Court in the case of T.K Serbeh & Co Ltd V Mensah [2005-2006] SC GLR 341 also crystallized proof in law as follows; “For however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof”. In keeping with the above principle in law, the Plaintiff’s witness in proving the claim made in Court, tendered in evidence Exhibit “A” which is the requesting cheque issued by J.T Commercials on 8th January 2016 issuing a cheque payable to Accra Brewery Limited the amount of Fifty Seven Thousand, Seven Hundred and Seventy Three Ghana Cedis only Sixty Eight Pesewas (GH¢57,773.68) quoted in words and in figures. Exhibit “A” has the stamp of Stanbic Bank Ghana Limited dated 9th January 2016 on it. On the same exhibit “A”, one can see that, the cheque was transferred to Stanbic Bank Ghana Ltd and per the 2nd stamp of Stanbic Bank Ghana Ltd, Accra Main Branch the cheque was received on 12th January 2016 with the inscription “clearing” on it. Underneath the cheque is stated, “Passed”. Per Exhibit “B”, on the said 12th January 2016 under the column Description, the cheque number 00000140 clearing inbound was debited with the amount of GH¢57,773.68. It is therefore not in doubt that, the Defendant did issue a cheque for the above quoted sum of 11 | P age money per Exhibits “A” and “B”. But the transaction or the final destination of the said cheque is not stated in the details in exhibit B. The question is, did the Defendant issue the cheque on the said date with the said face value to be overdrawn on its account and if so, why would the Defendant’s witness now turn around to deny that it authorized such transaction to take place. I shall reproduce excerpts of what transpired during cross examination of the Defendant’s witness on 21st March 2024 by Counsel for the Plaintiff. Q. Please take a look at Plaintiff’s Exhibit “A”. What is the date on the cheque? A. 8th January 2016. Q. And the said cheque is Defendant’s Company’s cheque from Plaintiff’s Bank? A. That is so. My Lady. Q. The cheque is however not signed by you. Is that correct? A. That is so My Lady. I was not the one who signed the cheque. It was my representative who signed the cheque. Q. What is the name of the representative who signed the cheque? Q. His name is Mr. William Quartey. Q. And you say he is the Director of the Defendant’s Company? A. That is so My Lady. Per the evidence, the Court is convinced that the Defendant through its representative, Mr. William Quartey, indeed did issue a cheque No.000140 on 8th January 2016 for the amount of money quoted on 12 | P age the face of the cheque payable to Accra Brewery Limited. And I so hold. I therefore settle issue 1 in favor of the Plaintiff. Now, I shall turn my attention to issue 2 which is, whether or not, the Defendant’s account with the Plaintiff was fully funded as at 8th January 2016 for the Defendant’s cheque in the sum of GH¢57,773.86 to clear. Per the evidence available to this Court, the Defendant issued a cheque dated 8th January 2016, with the insignia J.T Commercials Limited at the signature column with the face value of Fifty Seven Thousand, Seven Hundred and Seventy Three Ghana Cedis only, Sixty Eight Pesewas (GH¢57,773.68) payable to Accra Brewery Limited. This cheque the Defendant’s witness testified that, it was signed by William Quartey. A quick perusal of Exhibit “B” which is the statement generated by the Bank will show that, on 12th January 2016, the Defendant’s cheque no 000140 with description “Clearing Inbound CHQ 140 has an amount of GH¢57,773.68 stated in the Debit column. What then does this mean? This points to one conclusion that the Defendant had been allowed to overdraw its account and the money was disbursed to a receiving end and that will likely be the bank of Accra Brewery Limited- Stanbic Bank Ghana Limited. The Defendant’s witness has said that, it did not authorize the Plaintiff to overdraw on its accounts to any third party, what then do we make of Exhibit. A. 13 | P age The Court is of the view that, the Defendant did, in fact issue out a cheque from its end payable to Accra Brewery Limited, obviously to offset a debt owed the Accra Brewery Limited. It is very obvious, too, that in issuing a cheque one does not need the authorization of the bank it saves with to do so. In her evidence the Plaintiff’s witness testified that, the Defendant has had a long history of banking relationship with the Plaintiff and as a result of that, the Plaintiff had allowed the Defendant to overdraw its account from time to time and that was the Plaintiff’s way of supporting the Defendant’s business, However, the Plaintiff did not substantiate this assertion with any evidence of when it has ever allowed the Defendant to overdraw its account. Per her testimony, at the time the cheque was issued for the amount quoted on it to be paid, the Defendant did not have enough funds in its account with the Bank at the time, to meet the face value of the cheque, but in keeping with the practice between them, the Plaintiff allowed the cheque to go through instead of returning it back to the Defendant, since there were not enough funds in the Defendant’s account, knowing of the consequences of returning dud cheques to customers. So to help the Defendant’s business, the Plaintiff allowed the Defendant to overdraw its account to the tune of Forty Two Thousand Five Hundred and Sixty Five Ghana Cedis Forty Eight Pesewas (GH¢42,565.48).This amount is recorded on the 12th of January 2016 on Exhibit ‘B’. To the issue of whether or not the Defendant’s account was fully funded as at 8th January 2016, upon a careful perusal of Exhibit ‘B’, 14 | P age one can see that, on Exhibit B, the credit column of the bank statement, on 6th January 2016, the Defendant had standing to its credit, an amount of GH¢5,144.00. On 7th January 2016, the Defendant had GHS1, 020. All totaling GH¢6,164.00. The next recording on the statement was 11th January 2016. From the above, it is clear that, on or by the 8th of January 2016, the Defendant did not have enough funds in its account. So the Defendant ought to have known when it was issuing the cheque on 8th January 2016 that, it did not have enough funds in its account with the Bank. Even though it did not have enough money in its account, the Plaintiff went ahead and honored the Defendant’s cheque. This is in tandem with the evidence of the Plaintiff’s witness that the Plaintiff went ahead and honored the cheque issued by the Defendant despite the fact that, the Plaintiff knew that the Defendant did not have enough funds in its account, This is a big risk the Plaintiff took. Once there is evidence that the Plaintiff honoured the cheque for the Defendant when it did not have sufficient funds, per exhibit “B”, the Defendant ought to repay the money it was allowed to overdraw. Per Exhibit “B”, which is the Bank statement that the Plaintiff’s witness tendered in Court as evidence, it is deduced that as at 8th January 2016 the Defendant was not fully funded to be in a position to meet its financial obligation regarding the cheque it issued with the face value of Fifty Seven Thousand, Seven Hundred and Seventy Three Ghana Cedis, Sixty Eight Pesewas (GH¢57,773.68) payable to Accra Brewery Limited. 15 | P age Issue (ii) is settled in favour of the Plaintiff. This then brings me to the 3rd Issue. 3RD ISSUE Having settled the first two issues, I shall now turn my attention to the 3rd issue which is whether or not the Plaintiff honored Defendant’s cheque in the sum of GH¢57,773.86 presented to it even though its accounts with it was not fully funded. Plaintiff’s witness testified that on the 8th of January 2016 when the Defendant issued the cheque for the payment of the amount of Fifty Seven Thousand Seven Hundred and Seventy Three Ghana Cedis, Sixty Eight Pesewas (GH¢57,773.68) it did not have enough funds in the accounts with the bank, as has been established that the Defendant had as at that time only GHS 6,164.00 as at 7th January 2016 in its accounts and because of the Defendant’s long standing relationship with the bank instead of returning the cheque unpaid, the Plaintiff honored the cheque and allowed the Plaintiff to overdraw its account at the branch to the tune of Forty Two Thousand, Five Hundred and Sixty Five Ghana Cedis, Forty Eight Pesewas (GH¢42,565.48). This transaction is what the Defendant says it did not give the Plaintiff any mandate to do so, according to the Plaintiff, it okayed the cheque due to the long standing relationship it has with the Defendant and it did that to support the Defendant’s business. Unfortunately, as said earlier in this delivery, the Plaintiff does not give any evidence or precedent which supports Plaintiff allowing the 16 | P age Defendant to overdraw its account without Defendant’s express authority. Per exhibit “B”, on the 12th of January 2016, the book balance indicates GH¢42,565.48 on the statement and the Defendant had GH¢61,145.00 in its accounts. So per what has been stated in Exhibit “B” on the 12th of January 2016, and per the testimony of the Plaintiff’s witness, even though the Defendant had issued a cheque with a face value of Fifty Seven Thousand Seven Hundred and Seventy Three Ghana Cedis, Sixty Eight Pesewas (GH¢57,773.68) the Plaintiff allowed the Defendant to overdraw the amount of Forty Two Thousand, Five Hundred and Sixty Five Ghana Cedis, Forty Eight Pesewas (GH¢42,565.48) this is borne out by Exhibit “B”. Based on the above therefore, the Court finds as a fact that, the Plaintiff allowed the Defendant to overdraw its account to the tune of Forty Two Thousand, Five Hundred and Sixty Five Ghana Cedis, Forty Eight Pesewas (GH¢42,565.48). I so find. Again, I resolve issue 3 in favour of the Plaintiff. 4TH ISSUE On the 4th issue of whether or not the Defendant has reimbursed Plaintiff for the sum of GHS42, 565.48 being the shortfall in Defendant’s account with the Plaintiff when the Plaintiff honoured Defendant’s cheque drawn on Plaintiff in favour of Accra Brewery Limited in the sum of GH¢57,773.86. The gravamen of the tussle between the parties is hinged on the ground that the Plaintiff allowed the Defendant to overdraw its accounts when it did not have enough funds in its accounts, and having overdrawn its accounts, the Defendant has refused and or 17 | P age failed to reimburse it and has overran its accounts such that, as at 30th June 2020, the Defendant’s indebtedness to the Plaintiff stood at Seventy Eight Thousand, Six Hundred and Eighty One Ghana Cedis, Eighty Two Pesewas (GH¢78,681.82). Indeed, per Exhibit “B”, as at 30th June 2020, the figure stated there is what has just been quoted. However, this claim was denied by the Defendant’s witness in her evidence before the Court. During cross examination of the Plaintiff’s witness by the Defendant’s witness on 30th January 2024, this is what transpired. Q. I put it to you that, your last date of the Bank’s debit which was 23rd March 2016, on Exhibit “B” reflected an amount of GHS28, 735.76. A. My Lady, as stated in my witness statement as at the time the cheques came through clearing and the Bank honored it, there were some credits that is deposits into the accounts on that same date. We allowed the cheques to overdraw on 12th January 2016 and on that same day, there were some credits of some cash and cheques into the account. At the end of that same day, the account was overdrawn GHS42, 565.48. Q. After all these transactions even if the Defendant owed your Bank, it will be to the tune of GHS28, 735.76 as at 23rd March 2016, do you agree with me? A. Yes I agree. Though when we called the Defendant’s Company to regularize the account, when I wrote my witness statement, the amount was GHS42, 465, 48 but there were some few lodgments and the last one was on 23rd March 2016, and the balance was GHC28, 735.76. Q. In this vein, it would be fair that, at the time you commenced this action, the amount that the Bank should quote that the Defendant owed should be GHS23, 735.76 with interest. 18 | P age A. My Lady, as at the time I was indicating my witness statement, the account was allowed to overdraw up to the GHS42, 565.48 and that is what I indicated in my witness statement. Because of the pending issue, we extract, in extracting the statement we saw that there were lodgments and payments being credited on the account that reduced the overdrawn balance because the account was being run at that time. Again, on the 14th of March 2024 during the further cross examination of the Plaintiff’s witness this is what transpired. Q. At the last adjourned date, you mentioned that, it was after we have been to Court that, the Defendant made certain payments. Don’t you think it would have been necessary to bring to the Court’s notice that, indeed the Defendant made payments after the case had been brought to Court? A. My Lady, I remember vividly we were going through the statement presented and the balance as at the time of the witness statement was quoted there, but she went further later to quote certain amount that should be the balance and I explained. At the time I was reporting on that, that was the deficit on the account and the statement explained further that there were some lodgments. From this exchange, it becomes clear that, at the time of filing the witness statement of the Plaintiff’s witness on 1st December 2022, the Plaintiff had stated that, the amount owed by the Defendant to the Plaintiff was GH¢42,565.48. And has testified that, after she had filed the witness statement, there were some lodgments to the credit of the Defendant that reduced the Defendant’s debt to GH¢28,735.76. The Plaintiff, being the onus bearer to prove its claim whether, the Defendant has reimbursed the Plaintiff, agreed with the Defendant’s witness that, even though at the time of preparing her witness statement, she had stated GH¢425,645.88, it was after the filing of the 19 | P age witness statement that they noted that the Defendant made some lodgments into the account of the Plaintiff. The Plaintiff’s witness agreed that, in that vein, it would have been fair for her to have informed the Court in her witness statement at the time that the Defendant had made some lodgments in her account and so only owed the amount of GH¢28,735.76 with interest and not the GH¢42,565.48 it had quoted in her witness statement. The Plaintiff’s witness conceded that, after extracting the statement Exhibit “B” they saw that, there were some lodgments and payments credited to the Defendant’s account that reduced the overdrawn balance because the account was being ran at the time. From the evidence adduced, it is then clear to the Court that, the Defendant has reimbursed the Plaintiff with some amount of money to reduce the overdrawn account, because it made some lodgments and payments into its account that have reduced her balance. So, the Plaintiff’s own witness, having conceded that, the Defendant reimbursed the Plaintiff with some lodgments the defendant made into its account, thus reducing the overdrawn amount stated in her witness statement, in my respectful opinion therefore, it is clear that the Defendant reimbursed the Plaintiff and so the amount owed is GH¢28,735.76 with interest thereon. I settle issue 4 in favour of the Defendant. 5TH ISSUE 20 | P age This then brings me to the 5th issue, which is whether or not the Defendant as at 30th June 2020 was indebted to Plaintiff in the sum of GH¢78,681.82. The Plaintiff’s witness testified that, as at 30th June 2020 the Defendant’s indebtedness to Plaintiff stood at Seventy Eight Thousand, Six Hundred and Eighty One Ghana Cedis, Eighty Two Pesewas (GH¢78,681,82) being the overdrawn account together with accrued interest. In proof of its claim that the Defendant owed it on its overdrawn account of the stated amount aforementioned, the Plaintiff’s witness tendered in evidence, Exhibit “B”, which is the extracted statement which had as at the 30th of June 2020 the amount stated therein. The Court has settled the 4th issue that the Defendant had reimbursed the Plaintiff. The Plaintiff’s witness conceded that, the Defendant having reimbursed the Plaintiff by making some lodgments and payments in its account, this then reduced the quoted amount it had stated in her witness statement and this came to their realization after they had extracted the statement because of the case in Court, after she had written her witness statement. To this end therefore, even though per Exhibit “B” which is the Bank Statement, the amount stated there was GH¢78,68 .82 as at the 30th of June 2020, the Plaintiff’s witness admitted or agreed that, the amount actually ought to have been GH¢28,735.76. If both parties agree that this is how much should be the amount owed by the Defendant, then the Defendant has indeed paid off a 21 | P age chunk of the debt owed, remaining the outstanding figure of GH¢28,735.276 After critically considering Exhibit “B” and also the admission by the Plaintiff’s own witness that, the Defendant had paid off some of the overdrawn money during cross examination, I will hold on the 5th issue that, the Defendant had paid off some of the overdrawn amount as at 23rd March 2016 and owed GH¢28,735.28 with interest, till the Plaintiff added its statutory charges on the account which shot the amount up to GH¢78,681, 82 as being claimed by the Plaintiff. I resolve issue 5 in favor of the Defendant. I shall now turn my attention to the 6th issue which is, whether or not the Defendant is entitled to its counterclaim. I have considered the Defendant’s counterclaim and I am of the view that, per the evidence adduced and having held that the amount owed by the Defendant to the Plaintiff is GH¢28,735.76 since per the evidence, the Defendant had made some payments and lodgments in its account, in the respectful view of the Court, then all the reliefs in the Defendant’s counterclaim are rendered moot. It will therefore not be of benefit to go into the merits of Defendant’s counterclaim to make any orders therefrom. It is trite knowledge that, when a matter is moot it presents no practical relevance to be interrogated as the Courts should be seen to be dealing with live issues of law but not dealing with dead and buried issues which have no hope of life. 22 | P age In the case of Amidu v President Kuffour & Ors [2001-2002] 2 SCGLR 86 at page 106 it was held that, “an action is generally considered moot when it no longer presents a justiciable controversy because issues involved have become academic or dead. This may happen when the matter in dispute has either been resolved already and hence there is no need for judicial intervention, or events happening thereafter have rendered the issues no longer alive. In either situation, unless the issue is a recurring one and likely to be raised” Accordingly, I shall dismiss the Defendant’s counterclaim. CONCLUSION Having assessed the evidence adduced and on the preponderance of the probabilities, this Court is satisfied that, the Plaintiff has been able to discharge the evidential burden on it to prove its claim that, the Defendant was allowed to overdraw its account even though at the time it issued the cheque, Exhibit “A”, it did not have enough funds in its account. All matters considered, based on the law and the evidence adduced at the trial, and the Court having made the above findings, it is hereby ordered that, the Plaintiff is to recover the amount of GH¢28,735.76 from the Defendant. Again, interest on the amount of GH¢28,735.76 shall be paid on the said amount from the last date that the amount became due till date of final payment in accordance with the lending rate of the Plaintiff Bank. 23 | P age Cost follows event, cost of Ten Thousand Ghana Cedis (GH¢10,000.00) is awarded in favour of the Plaintiff against the Defendant. FINAL ORDERS 1. Judgment is awarded the Plaintiff for the recovery of the amount of GH¢28,735.76. 2. Interest on the said GH¢28,735.76 from when it became due till the date of final payment at the lending rate of the Plaintiff. 3. Cost is assessed at GH¢10,000.00 in favour of the Plaintiff against the Defendant. Accordingly ordered. (SGD) …………………………………………… JUSTICE MAVIS AKUA ANDOH (MRS.) JUSTICE OF THE HIGH COURT COMMERCIAL DIVISION “8” LAW COURT COMPLEX-ACCRA COUNSEL: NOOR DEEN-SAEED APPEARS FOR THE PLAINTIFF. SOLOMON BOYE BOISON HOLDS THE BRIEF OF JAH JOSIAH FOR THE DEFENDANT. AUTHORITIES Statutes referred to 1. Evidence Act [1975] Act 323. 2. High Court Civil (Procedure) Rules 2004 (C.I 47) 24 | P age Ghanaian Cases referred to. 1. Fattal v Wolley [2013] 2SCGLR 1070 @ Page 1070. 2. Environmental Development Group Ltd V Provident Insurance Co Ltd & 2 Ors. [2020] 165 GMJ 39 SC. 3. Bank of West Africa Ltd V Akun [1963]1 GLR 176. 4. Takoradi Flour Mills V Samir Faris [2005-2006] SCGLR 882. 5. Fosua & Adu Poku V Dufie (Deceased) and Adu Poku-Mensah [2009] SCGLR 310. 6. Kusi & Kusi V Bonsu [2020] SCGLR 60. 7. Zabrama V Segbedzi [1991]2 GLR 221 @ 224. 8. Yaw Selorm V The Commissioner, Ghana Revenue Authority [2019] 136 GMJ 22 CA @ 50. 9. T.K. Serbeh & Co Ltd V Mensah [2005-2006] SC GLR 341. 10. Amidu v President Kuffour & Ors. [2001-2002] 2 SCGLR 86. 25 | P age