OPPORTUNITY INTERNATIONAL SAVINGS & LOANS VRS. BORTEI (CM/RPC/0535/2021) [2024] GHAHC 466 (20 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 20TH NOVEMBER 2024 BY HER LADYSHIP JUSTICE MAVIS AKUA ANDOH (MRS). ======================================================= SUIT NO: CM/RPC/0535/2021 CORAM: MAVIS ANDOH J (MRS). ------------------------------------------------------------------------------- BETWEEN OPPORTUNITY INTERNATIONAL SAVINGS & LOANS ======= PLAINTIFF NO.D765/3 Kwame Nkrumah Avenue ACCRA VRS EUGENE BORTEI ======= DEFENDANT GK-0756-5704 Near Otoo Block Factory Oyibi –Accra. PARTIES: PLAINTIFF REPRESENTED BY BARBARA EWOENAM KUKAH DEFENDANT ABSENT. ======================================================= JUDGMENT ======================================================= On 15th April 2021, the Plaintiff, caused to be issued out of the Registry of this Court, a Writ of Summons and Statement of Claim against the Defendant for the recovery of the following reliefs; 1. An amount of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Cedis, Thirty-Two Pesewas 1 | P age (GH¢341,339.32) same being the balance outstanding on a credit facility granted to the Defendant. 2. Interest on the said amount of (GH¢341,339.32) at the facility rate of 36% penalty interest on 10% till the date of final payment. 3. An order for the judicial sale of the following vehicles, Hyundai Mighty Truck with registration number GM 91-15, Hyundai Mighty Truck With registration GN 2539-16, Mercedes Benz with Registration No GN 3508 14, Mercedes Benz Sprinter with registration Number GN 4278-14, Mercedes Benz Sprinter with registration No GT 3430-15, Hyundai Mighty Truck with registration No GT 2664-17 used to secure repayment of the facility. 4. An order for the realization by sale of land being and situate at Oyibi measuring 0.16 acres or 0.07 hectares evidenced by an Indenture dated 21/11/13 between Nii Sue-Yefio Anum (Head of Nii Mantse Ayiku We Family of Oyibi and Nungua) and Eugene Bortei. 5. Cost including legal fees. BRIEF FACTS The brief facts culminating in this action are as follows. The Plaintiff is a Financial Institution duly registered and licensed under the laws of Ghana, to engage in the business of banking. The Defendant is a Business man and operates transport services at Oyibi. In the period spanning 2015 to 2020, the Plaintiff gave out various loan facilities to the Defendant with corresponding interest rates for the various facilities with repayment obligations. According to the Plaintiff, it created a charge over the immovable property of the Defendant, situate at Oyibi measuring 0.16 acres or 2 | P age 0.07 hectares evidenced by an Indenture dated 21st November 2013, between Nii Sueyefio Anum (Head of the Nii Mantse Ayiku We family of Oyibi and Nungua) and Eugene Bortei. According to the Plaintiff, the Defendant, owed the Plaintiff an amount of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine Cedis, and Thirty Two Pesewas (GH¢341,339.32) at the time of the institution of this case The Defendant was notified of his outstanding loan balance, but had woefully failed to pay off the facility, together with all accrued interests. It is the Plaintiff’s case that, the Defendant has no defence whatsoever to this action and is bent on not fulfilling his financial obligations and or indebtedness to the Plaintiff unless specifically compelled by this Court to do so. Hence this action and the reliefs sought as endorsed on the Writ. When the Defendant was served with the Writ of Summons and the accompanying Statement of Claim, the Defendant entered an appearance to the action through his Counsel on 21st June 2021 and filed a 10- paragraphed Statement of Defence on 15th November 2021, denying the averments made by Plaintiff in its Statement of Claim and stated that, he had fully liquidated the amounts contained in the Statement of Claim. According to the Defendant, the so - called increments in the indebtedness of Defendant are fees and charges unilaterally imposed on the Defendant by the Plaintiff and no additional funds were disbursed to the Defendant. The Defendant contends that, the action is premature and has been brought in bad faith, and the Plaintiff is not entitled to its claims. Counterclaim The Defendant counterclaimed as follows; a) A declaration that the seizure and the subsequent sale of the Defendant’s Mercedes Benz Sprinter Bus by the Plaintiff is unlawful and a consequential order directed at the Plaintiff to compensate the Defendant for loss of use of the vehicle. 3 | P age b) Declaration that the transaction between the Plaintiff and the Defendant is harsh and unconscionable and a consequential order that, same should be reopened in accordance with the Loans Recovery Act (Cap 175). REPLY The Plaintiff did not file a Reply to deny the averments made by the Defendant in its Statement of Defence and Counterclaim. PRETRIAL SETTLEMENT The matter being Commercial in nature, the Parties first went before the pretrial Judge for the mandatory pretrial settlement conference. However, they failed to settle their differences at the pretrial settlement conference. The suit therefore went to trial. The Parties 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 Plaintiff advanced the sum of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, Thirty-Two Pesewas (GH¢341,339.32) to Defendant payable within twenty-four (24) months at an interest rate of 36% and penalty interest of 10%. 2. Whether or not the Defendant is indebted to Plaintiff in the sum of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, and Thirty-Two Pesewas (GH¢341,339.32). 3. Whether or not the Plaintiff is entitled to interest on the amount of Three Hundred and Forty-One Thousand Three Hundred and Thirty-Nine Ghana Cedis, Thirty-Two Pesewas (GHS341,339.32) till date of final payment at the facility rate of 39% and penalty rate of 10% till date of final payment. 4 | P age 4. Whether or not the seizure and subsequent sale of the Defendant’s Mercedes Benz Sprinter buses by the Plaintiff is lawful. 5. Whether or not the transaction between the Plaintiff and the Defendant is harsh and unconscionable. 6. Whether or not the Defendant is entitled to his counterclaim. 7. Any other issues arising from the pleadings. WITNESS STATEMENTS The parties filed their respective witness statements, including all documents they intended to rely on and their checklists for trial as directed by the Court differently constituted. It is significant to mention that, Counsel for the Plaintiff complied with the directives of the Court and filed the Plaintiff’s witness’s Witness Statement attaching all documents it would rely on during the trial as well as the checklist and served same on the Defendant. The Defendant, however, did not file any witness statement but only filed his checklist wherein he indicated that, he would not testify during the trial. Accordingly, the Defendant did not proffer any oral evidence at the trial. The trial was therefore, one- sided, since it was only the Plaintiff’s witness who gave her evidence and was cross- examined by the Defendant’s Counsel. It is worth mentioning at the outset that, the fact that a Defendant does not appear to contest a case, does not mean that the Plaintiff would be granted all that he asks for, by the Court. The rule in civil procedure cases is that, he who alleges must prove his or her claim on the balance of the probabilities and the burden is not lightened by the absence of the Defendant at the trial. 5 | P age The absence of the Defendant will aid the Plaintiff only, when he introduces sufficient evidence to establish a prima facie case of the entitlement to his claim. The case of Dr. R.S.D TEI and Another Vrs. Messrs CEIBA Intercontinental (2017-2018) 2 SCGLR 906 @ 919 or [2018] DLSC 3301 @ page 6 is apt in this regard. The Supreme Court speaking through Pwamang JSC held as follows; “It must be remembered that, the fact that a Defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asks for by the Court. The rule in civil cases is that, he who alleges must prove on the balance of the probabilities and the burden is not lightened by the absence of the Defendant at the trial. The absence of the Defendant will aid the Plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim”. Trial was conducted for the Plaintiff to prove its claim. TRIAL On 18th December 2023, the Plaintiff through its witness, Stella Lamptey who described herself as the SME Relationship Officer, testified in Court on behalf of the Plaintiff. The witness relied on her Witness Statement filed on 3rd June 2022 and her attached exhibits as her evidence in chief. Counsel for the Defendant was in Court to cross examine the Plaintiff’s witness. As indicated earlier, the Defendant elected not to give his evidence to contest this action. The Court took the position that, the Defendant was not interested in prosecuting his case. But as stated earlier, Defendant’s Counsel was in Court to cross- examine the Plaintiff’s witness. Since the Defendant did not testify in this case, the Court was disabled from taking his evidence and the Plaintiff was denied the opportunity of cross- examining him. Written Addresses On 23rd February, 2024, the Plaintiff closed its case. Both Counsel for the Parties were directed by the Court to file their respective written 6 | P age addresses. Counsel for the Plaintiff did not file his written address, but Defendant’s Counsel filed his written address which the Court considered and will refer to excerpts of it in this ruling. BURDEN OF PROOF In determining this matter, it is important to set out what the law states in respect of the 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. 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. See the case of Takoradi Flour Mills Vrs Samir Faris [2005-2006] SCGLR 882. 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. 7 | P age The burden of producing evidence as well as the burden of persuasion is cast on such a party and the standard of proof required 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 has to meet the standard of proof on the preponderance of the probabilities to require a consideration if any, in the Plaintiff’s case. Evidential support of Plaintiff’s claim The Plaintiff in support of its claim tendered in the following documents as exhibits. 1. Exhibit A – a letter approving the loan facility to the Defendant dated September 23rd 2015. 2. Exhibit B- a 2nd letter approving a loan facility to the Defendant dated July 21 2016. 3. Exhibit “C” - an application for loan of Two Hundred Thousand Ghana Cedis not dated, but was received on 16th May 2017. 4. Exhibit “D”- a letter approving a loan facility dated June 21st 2017. 5. Exhibit “E”- Legal charge between parties dated 5th July 2017. 6. Exhibit “F”- Application by the Defendant for a loan facility of Three Hundred Thousand Ghana Cedis dated July 17 2018 promising to repay within 24 months. 7. Exhibit “G”- approval letter for the loan of GHC300, 000.00. 8. Exhibit “H” -Approval Letter for a loan facility of GHC312, 477.28 dated 11th July 2019. 9. Exhibit “J”- Pledge Agreement- Inventory of the loan of GHC312, 477.28 dated 11th July 2019. 10. Exhibit “K” -Final demand notice to Defendant dated November 5th 2019. 11. Exhibit -“L” Application for loan restructure dated 20th April 2020. 8 | P age 12. Exhibit “M”- a copy of a receipt from EMS of a demand Notice. 13. Exhibit “N” Summary sheet of statement of account. DOCUMENTS TENDERED THROUGH THE PLAINTIFF’S WITNESS 14. Exhibit “.1 Motor Vehicle certificate of Valuation 15. Exhibit “2” series. Call card reports. 16. Exhibit ”3 “Memorandum of no objection from the Collateral Registry 17. Exhibit “4”. Account statement. COURT’S ANALYSIS I deem it necessary to analyze issues 1, 2 and 3 together since they are interlinked. They are, i. Whether or not the Plaintiff advanced the sum of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, Thirty-Two Pesewas (GH¢341,339.32) to Defendant payable within twenty-four months at an interest rate of 36% and penalty interest of 10%. ii. Whether or not the Defendant is indebted to Plaintiff in the sum of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, and Thirty-Two Pesewas. (GH¢341,339.32) iii. Whether or not the Plaintiff is entitled to interest on the amount of Three Hundred and Forty-One Thousand Three Hundred and Thirty-Nine Ghana Cedis, Thirty Two Pesewas (GH¢341,339.32) till date of final payment. Courts Analysis of the Issues and Opinion To support its claim that the Plaintiff advanced the sum of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine 9 | P age Ghana Cedis, Thirty Two Pesewas (GH¢341,339.32) to Defendant, payable within Twenty Four months at an interest rate of 36% and penalty interest of 10% as claimed by the Plaintiff in its pleadings, the Plaintiff tendered in evidence various exhibits numbered A- N as enumerated above to prove its claim. The Plaintiff’s witness testified that, from the year 2015- 2020 the Defendant had applied to the Plaintiff for loan facilities at various stages, some as top ups and also to enable the Defendant to stock his shop or to buy vehicles. According to the witness, the Plaintiff per the various exhibits granted the Defendant the facilities in the form of loans. A careful perusal of exhibit “A” show that, in the year 2015 the Plaintiff first applied for a loan of GH¢60,000.00 to purchase a vehicle described as a Kia Rhino, by a credit facility dated 9th September 2015. The interest thereon was stated on page 2 of the agreement to be 36% flat rate, a facility fee of 3% was to be paid as insurance premium with an additional rate of interest, penal interest of 10% to be levied against the Defendant. The first loan facility was therefore found to be an amount of GHS60, 000.00 approved for the Defendant. The Witness again tendered in evidence Exhibit B which is a top -up amount of Seventy-Nine Thousand, Six Hundred Ghana Cedis (GH¢79,600.00) in addition to an outstanding debt of Forty Thousand, Four Hundred Ghana Cedis (GH¢40,400.00) making a total indebtedness of One Hundred and Twenty Thousand Ghana Cedis, (GH¢120,000.00). It was stated that, interest on that facility would attract forty two percent (42%), with 10% penal interest stated thereon in case of default, to be paid within 24 months. This facility was duly signed by the Defendant on 21st July 2016. In May 2017, the Defendant again applied for an additional loan of Two Hundred Thousand Ghana Cedis (GH¢200, 000.00) to enable him purchase stock to meet the demands of his clients which he promised to repay within 18 months. In support of the claim, the Plaintiff tendered in Exhibit “C” which is the letter approving the loan facility 10 | P age to the Defendant and Exhibit “D” which is the agreement covering the loan facility. Again, per Exhibit F, the Defendant applied for a top up loan of Three Hundred thousand Ghana Cedis (GH¢300,000.00) per his letter dated 17th July 2018 to enable him to purchase stock to meet the demands of his clients. He indicated in the said letter that, his outstanding balance was GH¢78,555.58 and was requesting for a top up of GH¢221, 444.42. As to how the Defendant himself claimed that he had an outstanding balance of GH¢78,555.58, the Court is not told how he came by that outstanding amount. This latest facility of GH¢300,000.00 was granted the Defendant per an approval letter dated 24th July, 2018 which is exhibit G. Again, on 11th July 2019, per Exhibit “H” which is an approval letter, from the Plaintiff, The Plaintiff granted an amount of Three Hundred and Twelve Thousand, Four Hundred and Seventy-Seven Ghana Cedis Twenty-Eight Pesewas (GH¢312,447.28) to the Defendant, even though there was no evidence of a request letter from the Defendant requesting for the loan, the Defendant signed Exhibit “H” as having been granted the loan. Exhibit “J” is a pledge agreement inventory by the Defendant pledging his goods specified in the schedule as collateral in respect of the loan of GH¢312,477.28. The inference drawn here is that, even if there was no request letter from the Defendant for this loan, it was disbursed to him by the Plaintiff and he pledged his properties. On 5th November 2019, the Plaintiff wrote a final demand notice to the Defendant regarding the amount of GH¢312,477.28 loaned to the Defendant on 11th July 2019, wherein the Plaintiff expressed its disappointment in the attitude of the Defendant in repaying the loans. This is evidenced by Exhibit K. Per the evidence adduced during the trial, the Defendant wrote back on 20th April, 2020 asking that the loan be restructured for the next four months with the explanation that, his business had not been doing 11 | P age well due to the Covid- 19 pandemic and gave a plan for the repayment of the loan. Exhibit “L” is a letter dated 6th August 2020 written by the Defendant informing the Plaintiff that he would pay an amount of Ten Thousand Ghana Cedis (GH¢10,000.00) into his account with the Plaintiff, ostensibly to offset part of the loan facilities granted him by the Plaintiff. Per Exhibit “M”, the Plaintiff again wrote to the Defendant informing him about the outstanding amount of Three Hundred and Twenty Thousand, Eight Hundred and Fifty Nine Ghana Cedis, and Sixty Seven Pesewas. (GH¢321,859.67) the Plaintiff loaned to the Defendant on 30th April 2020. The above chronology of events has been painstakingly restated so as to determine whether or not the Plaintiff indeed did grant the loan facilities as claimed to the Defendant as loan over the period of time The Plaintiff, being the onus bearer to prove its claim of whether it granted loan facilities to the Defendant tendered in evidence, the exhibits enumerated above which prove that the Plaintiff advanced loan facilities to the Defendant during the period 2015-2020. The Defendant, declined to give evidence so did not file any witness statement to controvert this piece of evidence. His Lawyer cross- examined the Plaintiff’s witness though, but did not touch on the issue of whether or not the Plaintiff granted the loan facilities to the Defendant. What, then, is the implication of the Defendant’s failure to cross- examine the Plaintiff’s witness on this piece of evidence? The authorities are legion that, where evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court. 12 | P age The case of Kusi & Kusi v Bonsu [2020] SCGLR 60 @ pages 78-79, is apt in this regard. The Supreme Court quoted with approval, the case of Fori V Ayirebi [1966] 2 GLR @ 627 and gave a most direct and helpful authority on the point about undenied averments, and held in holding 6 that, “When a party had made an averment and that averment was not denied, no issue was joined and no evidence be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he needs not call further evidence of that fact”. After critically considering Exhibits “A-M” and also the failure of Defendant’s Counsel to cross examine the Plaintiff’s witness on the said advancement of the amount of (GH¢341,339.32) to the defendant, to controvert same, I will hold on the first issue that, the Plaintiff did advance the amount of (GH¢341,339.32) to the Defendant. I resolve relief “A” in favour of the Plaintiff. I shall now turn my attention to issue “B” which is, whether or not, the Defendant is indebted to Plaintiff in the sum of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine Ghana Cedis, Thirty Two Pesewas. The Plaintiff is in Court asking for recovery of the amount of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine Ghana Cedis, Thirty Two Pesewas, being the balance outstanding on the loan facilities granted to the Defendant. It is not in doubt that the Defendant was granted loan facilities by the Plaintiff as borne out by Exhibits A-M which the Court finds as a fact. The question I pose is, does the Defendant indeed owe the Plaintiff the amount of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine Ghana Cedis, and Thirty Two Pesewas, the Plaintiff is claiming as outstanding? I pose this question because as Counsel for the Defendant submitted in his written address, it appears the Plaintiff’s witness was not even sure of the exact amount owed by the Defendant. 13 | P age Counsel for the Defendant referred to exhibit “M” headed; Demand notice, outstanding loan facility with Opportunity International Savings and Loans (OISL) which is a demand notice to the Defendant wherein the Plaintiff wrote to the Defendant on 2nd November 2020, demanding an amount of Three Hundred and Twenty One Thousand, Eight Hundred and Fifty Nine Ghana Cedis, Sixty Seven Pesewas. (GH¢321,859.67) which was loaned to the Defendant on 30th April 2020. Again, Counsel submitted that, the Plaintiff said that, prior to the date of writing the demand notice, the Defendant had an outstanding debt of Thirty-Eight Thousand, Five Hundred and Twenty-One Ghana Cedis, Twelve Pesewas (GH¢38,521.12). I will produce excerpts of the cross- examination held on the 23rd of February 2024 here for emphasis. Q. Take a look at Exhibit M, Exhibit M is a receipt for a demand notice the Plaintiff posted to the Defendant, is that not so? A. Yes my Lady. Q. And the demand notice is what is attached to the receipt dated 2nd November 2020.Is that not so? A. Yes my Lady. Q. In the said demand notice, Plaintiff communicated the Defendant’s indebtedness to him, is that not so? A. Yes, my Lady. Counsel for the Defendant in his written address, drew the Court’s attention to the fact that, paragraph 2 of the said exhibit “M” has the figure (GH¢38,521.00) but this Court will note that, that is an indication that the Defendant owed an outstanding amount of GH¢38,521.00. However, in the first paragraph the letter stated that, the Bank was writing to the Defendant regarding an amount of Three Hundred and Twenty-One Thousand, Eight Hundred and Fifty-Nine Ghana Cedis Sixty Seven Pesewas, (GH¢321,859.67). 14 | P age Counsel for the Defendant in order to prove to the Court that the Defendant did not owe the Plaintiff the amounts being claimed, tendered through the Plaintiff’s witness the bank statement of the Defendant “Exhibit 4” which gives the record of the entirety of the transactions between the parties in respect of the loan facilities. Per the Bank Statement submitted in Court, as at 30th September 2020, the account balance of the Defendant at the end of the period is in the zeroes (0.00). The Bank Statement as presented to Court shows the balance at the end of the period ending 30th September 2020 to be zero. Counsel for the Defendant submitted that, this therefore, is evident of the fact that, if the closing balance was 0.00 as at that time, then the Defendant did not owe the Plaintiff the amount of money that they are in Court for. If the closing balance contained in the Statement of account says 0.00, then the Defendant cannot be held to owe the Plaintiff the amount the Plaintiff is seeking to recover from the Defendant. From the above therefore, it appears the 2nd issue of whether or not the Defendant is indebted to the Plaintiff in the sum of GHs 341,339.32 is not supported by the evidence adduced per Exhibit 4. It follows therefore that, going by Exhibit 4, the Defendant is not indebted to the Plaintiff, the amount of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, Thirty-Two Pesewas (GH¢341,339.32) as being claimed by the Plaintiff. On the 2nd issue, per Exhibit “4” I hold that, the Defendant is not indebted to the Plaintiff the amount of Three Hundred and Forty-One Thousand, Three Hundred and Thirty-Nine Ghana Cedis, Thirty-Two Pesewas (GH¢341,339.32). Having held that the Defendant is not indebted to the Plaintiff the amount of Three Hundred and Forty One Thousand, Three Hundred and Thirty Nine Ghana Cedis, Thirty Two Pesewas (GH¢341,339.32), on the third issue of whether or not the Plaintiff is entitled to interest on the said amount, I again hold that the Plaintiff is not entitled to interest on 15 | P age the amount of Three Hundred and Forty-One Thousand, Three Hundred and Thirty Nine Ghana Cedis, Thirty Two Pesewas (GH¢341,339.32) at the facility rate of 39% and penal interest of 10% till date of final payment. The Plaintiff’s relief “ii” fails. I shall now turn my attention to the 4th issue of Whether or not the seizure and subsequent sale of the Defendant’s Mercedes Benz Sprinter buses by the Plaintiff is lawful. In determining this issue, it would be necessary for me to refer to the collaterals used by the Defendant to secure the repayment of the loan facilities granted to him by the Plaintiff. In Exhibit “J” which is headed; Pledge Agreement –Inventory, the Defendant, Eugene Bortei pledged the goods specified in the schedule therein as collateral for the loan of GH¢312,477.28 which was received by him from the Plaintiff on 11th July 2019. He declared that, the goods specified were solely owned by him. Further, the Defendant pledged as follows. “I hereby agree that the goods specified in the schedule as well as any stock of goods that I may have whilst still indebted to Opportunity Ghana can be claimed and taken by Opportunity Ghana in the event of noncompliance with the repayment schedule of the principal and interest agreed upon in the loan agreement with Opportunity Ghana”. I hereby agree not to pledge these goods as security for any other facility with any other persons or group of persons, and any attempts by me to do same will be void or of no effect. This pledge has been given by me without any duress or undue influence and the written documents to which I have placed my signature/thumbprint indicating my acceptance to the terms that has been explained to me by my relationship officer in Twi/English the language which I well understand”. 16 | P age The Defendant further signed or duly executed the pledge agreement by appending his name and signature in the presence of witnesses and officials of Plaintiff Company. The properties pledged by the Defendant per the Pledge Agreement –Inventory form are as follows; i. A land measuring 0.16 acre worth GH¢1,500.000.00 ii. Vehicle Hyundai Mighty Truck GM 91-15 GH¢40,000.00 iii. Vehicle Hyundai Mighty Truck GN 2539-16 GH¢45,000.00 iv. Vehicle Mercedes Benz Sprinter GN 3508 -14 GH¢35,000.00 v. Vehicle Mercedes Benz Sprinter GN 4278 -14 GH¢40,000.00 vi. Vehicle Mercedes Benz Sprinter GT 3430 -15 GH¢40,000.00 vii. Vehicle Hyundai mighty truck GT 2669-17 GH¢50,000.00 All these listed properties totaled GH¢1750.000.00. This was duly signed by the Defendant and his witness as well as an Official of the Plaintiff. In fact, per the terms contained therein to which the Defendant signed, a clause stated that “I (we) accept that, the goods specified below may be claimed and taken by Opportunity International and Savings Loans Ltd in the event of non-compliance with the repayment schedule agreed upon and attached to the loan agreement”. True to the dictates of the terms contained in the pledge agreement form, when the Defendant defaulted in the repayment of the loan facilities, the Plaintiff went ahead to seize his two vehicles in 2019 for sale to redeem the loan. The question is, at the time the vehicles were seized and sold by the Plaintiff, did the Defendant owe the Plaintiff? The simple answer is, if indeed the Defendant owed the Plaintiff at the time, then the Plaintiff was well within its rights to have seized the vehicles and sold them to defray the debt owed by the Defendant. It baffles me therefore that, the Defendant would question the lawfulness of the sale. If the Defendant owed the Plaintiff at that time, then the sale of his vehicles was the result of the indebtedness. The Defendant had himself pledged that in case of noncompliance on his part, the Plaintiff may claim the goods pledged. 17 | P age Section 25 of the Evidence Act, NRCD 323, provides as follows. “Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument or their successors in interest. Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest” In the Supreme Court case of Re: Koranteng (Dec’d) Addo v Koranteng & Ors [2005-2996] SCGLR 1039 decided at holding 2 as follows; “Under Section 25 (1) of the Evidence Act, NRCD 323 the facts recited in a written document were conclusively presumed to be true as between the parties to the document or their successors in title. Section 25 (1) had the effect of establishing an estoppel by written document which was applicable to the facts of the instant case”. Also, the case of Konadu v Tenassa Pharmaceutical and Trading Co Ltd [2013] 2 SCGLR 1104, the Supreme Court, in dealing with the above provisions of NRCD 323,held that “facts recited in a written document are binding on the parties to the document. Such facts per Section 26 and 24 of NRCD 323 are conclusively presumed as between the parties to the document”. A similar position was also taken by the Supreme Court in African Automobile Distributors V CEPS [2011] 2 SCGLR 955 where the Supreme Court unanimously upheld the judgment of the Court of Appeal which had affirmed the trial Court’s judgment that the Plaintiff was bound by the contents of an agreement it had entered into with the Defendant. 18 | P age Flowing from the above cited cases therefore, it is the clear thinking of the Court that, if the Defendant owed the Plaintiff at the time the vehicles were sold, then the goods used as collaterals, specifically, the two vehicle was the result of the indebtedness of the Defendant. The pledged agreement executed by the Defendant himself is binding on the parties. So, if there was noncompliance on the part of the Defendant as at the time the vehicles were sold, per the agreements the defendant had signed, the Plaintiff acted well within its rights to have gone for the two vehicles and sold them to defray the debt. In the respectful view of the Court, the vehicles sold by the Plaintiff for non-compliance on the part of the Defendant to repay the loan was well within their rights to do so and therefore lawful. I resolve issue 4 in favour of the Plaintiff. Having resolved issue 4, I will turn my attention to issue 5, which is, whether or not the transaction between the Plaintiff and the Defendant is harsh and unconscionable. From the evidence adduced, it is not in doubt that the Plaintiff advanced some loan facilities to the Defendant between the years 2015 to 2020 to either assist him restock his goods or buy vehicles. This is borne out by exhibits A-M. Which were tendered in evidence by the Plaintiff’s witness. In all these exhibits, it was gleaned that the Defendant duly executed the various agreements for the loan facilities which was a sine qua non to the loan being granted to him by the Plaintiff. This Court has held that, indeed the Plaintiff did grant to the Defendant some loan facilities. In all the agreements, the Court found that, the Defendant duly executed the agreement and in fact, per a Section in the agreements, which has been headed “conditions precedent” which is clause 9 specifies as follows; “The facility will be made available after presentation of the following; i. A signed copy of this agreement accepting its terms and conditions 19 | P age ii. At source deduction of all relevant fees as set out in clause 7 above. iii. A compliance with the security terms as described in clause 5 above. Apart from these conditions precedent, the agreement the parties both signed had a portion referred to as Security, wherein the Defendant agreed to the terms contained therein and appended his signature. Interestingly, at the time the Defendant was in dire need of funds to augment his business, he did not find the terms and conditions of the loan facilities harsh and unconscionable, why is he now complaining after enjoying the facilities since 2015?.The Defendant executed the agreement with his eyes wide open and there is no indication that he signed the various agreements under any duress. It does not lie in his mouth to be complaining now, that the terms were harsh and unconscionable. The Defendant was a party to the loan agreements which he duly signed with his eyes wide open and per the exhibits tendered had indicated when and how he would repay the loan facilities. Per Exhibit 4 he did in fact make some payments and as said earlier he did not sign the agreements under duress. It is therefore surprising that, since the year 2015 when the agreements were signed by the Defendant, he did not complain about the agreements being harsh and unconscionable, and would want the Court to make a pronouncement on same now after having made use of the loan facilities. Even more intriguing is the fact that, the Defendant per the evidence adduced, kept on year by year going back to the same Plaintiff for a top up loan to augment his business or to restock and for the restructuring of the loan wherein he even pledged to pay some amount of money. The question is, did he ever complain that the terms were harsh and unconscionable then? No such evidence was adduced at the trial. 20 | P age The Defendant shall not be permitted to use the Court to make such a pronouncement after he had benefitted from the loan facilities granted him over the years, and now turns around to, after so many years say that the terms of the agreements were harsh and unconscionable. The Defendant cannot be allowed to approbate and reprobate. In the respectful view of the Court, I am unable to make such a finding that the terms of the agreements were harsh and unconscionable when the Defendant himself freely and willingly and not under any duress signed the terms of agreement. Indeed, in the pledge agreement form signed by the Defendant, he had signed under this clause, “this pledge has been given me without any duress or undue influence and the written document to which I have placed my signature/ thumbprint indicating my acceptance to the terms that have been explained to me by my relationship officer in twi/English the language which I well understand”. Having himself signed the above clause, I am unable to declare that the terms of the loan agreement were harsh and unconscionable when the Defendant himself willingly not under any duress executed the agreement. Defendant’s counterclaim “A” is dismissed. This then brings me to the last issue of whether or not the Defendant is entitled to his counterclaim. The Defendant counterclaimed for a declaration to be made by the Court regarding the unlawfulness of the seizure and subsequent sale of his Mercedes Benz Sprinter bus and to be compensated. Again, the Defendant is asking for a declaration to be made that the transaction the parties entered into was harsh and unconscionable and should be reopened in accordance with the Loans recovery Act (Act 175). In the view of the Court, since the Defendant elected not to testify and so did not file any witness statement, there was no evidence placed before the Court from which the Court could make a 21 | P age determination regarding his counterclaim. There being no evidence from the Defendant, the Court did not consider the merits of his counter- claim. Same is dismissed. CONCLUSION All matters considered, in respect of the Plaintiff’s reliefs “i, “ii” the Plaintiff could not lead credible evidence to support its claim that the Defendant owed it that much and so should recover same, as well as interest accrued thereon as on the preponderance of the probabilities, the evidence adduced at the trial do not support such a claim. The Plaintiff failed to prove its claim on the preponderance of probabilities. Despite the finding made that the Plaintiff indeed did advance some loan facilities to the Defendant. The Plaintiff failed in its bid to prove how much the Defendant owed it to merit a finding in its favor. Accordingly, the Plaintiff’s reliefs i, ii, iii, iv, and v, sought are dismissed. Since the Defendant did not adduce any evidence on his counterclaim, the Defendant’s counterclaim is also dismissed. Cost follows event but in this case I shall make no order as to cost. Each party is to bear its own cost. (SGD) …………………………………………… JUSTICE MAVIS AKUA ANDOH (MRS.) JUSTICE OF THE HIGH COURT COMMERCIAL DIVISION “8” LAW COURT COMPLEX ACCRA COUNSEL NO LEGAL REPRESENTATION FOR THE PARTIES 22 | P age AUTHORITIES Statutes referred to 1. Evidence Act. Act 323. SUBSIDIARY LEGISLATION 1. High Court Civil (Procedure) Rules 2004 (C.I 47) Ghanaian Cases referred to. 1. Dr. R.S.D Tei and Another Vrs. Messrs Ceiba Intercontinental 2018 [DLSC] 3301 @page 6. 2. Bank of West Africa Ltd V Akun [1963]1 GLR 176. 3. Takoradi Flour Mills V Samir Faris [2005-2006] SCGLR 882. 4. Fosua & Adu Poku V Dufie (Deceased) and Adu Poku-Mensah [2009] SCGLR 310 5. Kusi & Kusi V Bonsu [2020] SCGLR 60. 6. Fori v Ayirebi [1966] 2 GLR @ 627. 7. In Re: Koranteng (Dec’d), Addo v Koranteng & Ors [2005-2996] SCGLR 1039. 8. Koanda v Tenassa Pharmaceutical and Trading Co Ltd [2013] 2 SCGLR 1140. 9. African Automobile Distributors V CEPS [2011] 2 SCGLR 955. 23 | P age