AGRICULTRUAL DEVELOPMENT BANK VRS ROYAL COMMODITIES @ 2 ORS. (CM/RPC/0669/2022) [2024] GHAHC 313 (20 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE [COMMERCIAL DIVISION] HELD IN ACCRA ON 20TH JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE EMMANUEL A. LODOH, J. CM/RPC/0669/2022 AGRICULTURAL DEVELOPMENT BANK PLAINTIFF ACCRA FINANCIAL CENTRE 3RD AMBASSADORIAL DEVELOPMENT AREA RIDGE-ACCRA VRS 1. ROYAL COMMODITIES DEFENDANT(S) 2. GLOBAL HAULAGE COMPANY LTD. 3. MR. ABDOULZAKOU ADAMOU ACCRA -------------------------------------------------------------------------------- JUDGMENT ------------------------------------------------- -------------------------------- Introduction This case essentially seeks a determination of whether or not the Plaintiff is entitled to recover from the Defendants monies alleged to be due the Plaintiff arising out of a loan facility agreement between the Plaintiff and the 1st Defendant. The Judgment will further seek to determine whether the 2nd and 3rd Defendant are also equally liable for the payment of the said alleged outstanding as alleged guarantors of the 1st Defendant. Finally, the judgment will seek to determine whether or not the Plaintiff is liable for the failure of the Defendants to repay the outstanding debts and if so whether the Plaintiff is further liable to pay for the debts of the Defendants arising of contracts between the Defendants and other creditors. 1 of 22 Thus per a Writ of Summons issued out of the Registry of the Commercial Court, Accra on 22nd August, 2022 the Plaintiff seeks the following reliefs as endorsed on their Writ of Summons against the Defendants: (a) Payment of the total sum of GHS 22, 194, 263.36 being the debit balance outstanding on account of banking facility granted by the Plaintiff to the 1st Defendant, the repayment of which was jointly and severally guaranteed by the 2nd and 3rd Defendants. (b) Interest on the said outstanding amount at the contractual interest rate from 1st July, 2022, to date of final payment. FURTHER OR IN THE ALTERNATIVE (c) An order for the judicial sale of a piece or parcel of land with warehouse situate, lying and being at Apowa in the Ahanta West Municipality in the Western Region, subject matter of the deed of mortgage dated June, 9th 2021. (d) Payment of legal costs on fully indemnity basis or on such other basis as may be assessed by the court (e) Further or other reliefs. Upon service of the Writ of Summons the Defendants entered conditional appearance through their lawyers on 29th August, 2022. They subsequently filed a Statement of Defence and a Counter-Claim on 13th September, 2022. The Counter-claim of the Defendant is listed as follows: (a) A declaration that the Plaintiff is responsible for the inability of the 1st Defendant to sell its industrial plot at Tema in order to raise money to pay its indebtedness to the Plaintiff and the other financial institutions. 2 of 22 (b) Payment of the under listed sums of money to the Defendants: i. Agricultural Development Bank PLC - GHS 4, 887,887.38 ii. GCB PLC - GHS 2, 045, 824.72 iii. ACCESS BANK - GHS 575, 946.74 iv. Related parties - GHS 2, 245, 692.97 (c) Cost including legal fees paid to the Defendant lawyer on full indemnity. Upon service of the Statement of Defence and Counter-Claim the Plaintiff filed a Reply on 12th October, 2022. Case of the Plaintiff The case of the Plaintiff as pleaded in their Statement of Claim filed on 22nd August, 2022 is that the Plaintiff is engaged in the business of Banking. That per a facility letter dated 7th September, 2020, the Plaintiff granted the 1st Defendant a loan facility of GHS15, 000,000.00 to be used by the 1st Defendant exclusively as working capital for the 2020/2021 crop season. They contended further that the loan facility had a tenure of twelve (12) months and with an agreed interest rate of 7% per annum above the Ghana Reference rate prevailing from time to time which put the interest rate at the time 21.77% per annum. The Plaintiff contended further that the interest rate was bound to go up if the Ghana Reference Rate went up. Regarding, the processes leading to the procurement of the loan facility, the Plaintiff pleaded that the 1st Defendant’s Board of Director’s at a meeting held on 29th September, 2020 approved the facility and further that the 1st Defendant acting through the 3rd Defendant assigned Cocoa Takeover receipts for the 2020/21 crop season to the Plaintiff. 3 of 22 Regarding the securities and indemnities, the Plaintiff, contended in paragraphs 7, 8 and 9 of the Statement of Claim as follows: 7. By a contract of indemnity dated 28th September, 2020, the 3rd Defendant issued an indemnity in favour of the Plaintiff. By the said contract of indemnity, the 3rd Defendant agreed to pay and satisfy the Plaintiff all sums of money which may become due and owing in case of default by the 1st Defendant in settling its debt obligations to the Plaintiff. 8. As collateral security for the repayment of the banking facility aforementioned, the 1st Defendant and Global Haulage Company Ltd executed a deed of mortgage dated June 9th 2021 over a piece or parcel of land measuring approximately 24.10 acre situate at Apowa in the Ahanta West District in the Western Region, by which charges were also created over the 3rd Defendant’s assets both fixed and floating. 9. Prior to the execution of the deed of mortgage June 9th 2021, the 3rd Defendant delivered to the Plaintiff a Deed of assignment dated 20th September, 2018 executed between Kojo Bankam and Global Haulage Company Ltd acting by its Managing Director Alhaji Abdul Aziz Adamu Iddrissu which covered the piece or parcel of land subject matter of the deed of mortgage. Regarding the incidents which immediately triggered the instant action, the Plaintiff contended that the 1st Defendant reneged in their repayments obligations and so per a letter dated 15th March, 2022, the Plaintiff informed the Defendant of their default in the repayment of the facility and demanded repayment of the outstanding which as at 28th February, 2022 stood at GHS19, 057, 890.76 and continued to accrue interest. 4 of 22 The Plaintiff further contended that the Defendant replied the said letter and in a letter dated 31st March, 2022, the lawyer for the Defendant wrote to the Plaintiff assuring the Plaintiff that the indebtedness will be fully settled and even outlined steps to liquidate the debt. The Plaintiff finally states in paragraph 12 and 13 of the Statement of Claim as follows: 12. By a letter dated 25th April, 2022, Plaintiff respondent to the letter dated 31st March, 2022 and drew attention to a few issues in relation to Defendants indebtedness and its retirement. 13. In breach of their payment obligations under the terms of the said banking facilities, the Defendants have failed and/or refused to liquidate their liability to the Plaintiff, with the result that as at 30th June, 2022 the debit balance on the consolidated account of the 1st Defendant stood at GH¢22, 194, 263.36 The Plaintiff therefore prayed for the courts intervention to compel the Defendants to pay the amounts endorsed on the Writ of Summons or in the alternative order the judicial sale of the securitised properties. Case of the Defendants The case of the Defendants is pleaded in their Statement of Defence filed on 13th September, 2022. The Defendant firstly in paragraph 3 of their Statement of Defence denied the averments by the Plaintiff in respect of the procurement of the loan facility by the 1st Defendant and the terms of the said loan facility. They however pleaded in paragraphs 4, 5 and 6 of their Statement of Defence circumstances that appear to suggest that they entered into a loan agreement with the Plaintiff as follows: 5 of 22 4. Save that the 1st Defendant assigned his Cocoa takeover receipts to the Plaintiff, the Defendant deny paragraphs 6 and 7 of the Statement of Claim and put the Plaintiff to strict prove. 5. Save that 1st and 2nd Defendants executed a deal of mortgage in favour of the Plaintiff paragraph 8 and 9 of the Statement of Claim are denied and Plaintiff is put to strict prove. 6. Paragraph 10 of the statement of claim is admitted to the extent that the Plaintiff wrote a letter to the Defendant dated the 15th March, 2022. Regarding whether or not they were indebted to the Plaintiff, the Defendants pleaded in paragraph 7 of their Statement of Defence as follows: 7. The Defendants deny that they own the sum of (GH¢ 19, 057, 890.76) stated in paragraph 10 of the statement of claim and aver that they instructed their lawyers who wrote a letter dated 11th March, 2022 to the Plaintiff and informed it that the 1st Defendant was taking steps to sell its 15 acre industrial plot in Tema and intended to use the proceeds of the sale to liquidate its indebtedness to the Plaintiff. The Defendant also pleaded that their inability to raise money to pay its indebtedness to the Plaintiff was entirely the fault of the Plaintiff and therefore they cannot claim the sums the Defendant allegedly owe to it. Explaining this unique placement of blame on the Plaintiff. The Defendants stated as follows following paragraph 7 of the Statement of Defence quoted immediately supra: 10. The Defendants aver that immediately the Plaintiff became aware that the 1st Defendant was selling the said plot of land, it invited the 1st Defendant’s 6 of 22 Managing Director and asked him to sign an undertaking to allow the Plaintiff to advertise and sell the said plot of land on its behalf. 11. The Defendants avers that subsequently the Plaintiff informed the 1st Defendant’s Managing Director that they got a purchaser for the plot of land and [sic] mentioned, gave the contact details and arrange a meeting between the 1st Defendant’s Managing Director and lawyer Edward Sam Crabbe Esq. the prospective purchaser who offered to purchase the said plot of land at Cedis equivalent of $4, 000,000.00 12. The Defendant again averred that Lawyer Edward Sam Crabbe Esq. concluded negotiations with the 1st Defendant’s Managing Director and their lawyers and assured them that the purchase price of the plot of land would be available to them within 14 days. 13. The Defendant aver that, the Plaintiff at the material time did not disclose the fact that the said lawyer was one of its external lawyers knowing very well that if it did the Defendants will decline to approach the said lawyer. The Defendant then contended that the Plaintiff and the said lawyer variously convinced the 1st Defendant’s Managing Director not to sell the land to prospective purchasers from March, 2022 to July, 2022 and therefore it declined offers from credible purchasers of the land because Plaintiff and the said lawyer assured it that he had a purchaser for the land. The defendant in respect of their counterclaim pleaded that at the time they were indebted to various institutions in the amount endorsed against their name in their counter-claim and were therefore seeking the Plaintiff to pay the said amounts. They explained their basis for seeking the said reliefs as follows: 7 of 22 18. The Defendant aver that the Plaintiff deliberately made its said lawyers to delay the purchase of the said plot so as to increase their indebtedness to it and proceed to sell the properties mortgaged to it at rock bottom prices. 19. The Defendants aver that, the Plaintiff was at all material time aware that the 1st Defendant had credible purchases for its said land, as the Plaintiff officials were in a meeting with one such prospective purchase where issues of the purchase of the land were discussed however due to its determination to ensure that the Defendants are unable to pay their indebtedness to it, it’s said lawyers was introduce [sic] to delay the sale. 20. The Defendants aver that the Plaintiff is responsible for the conduct of its said lawyer and it is therefore liable to the 1st Defendant and/or the Defendants for the additional indebtedness to the Plaintiff and the other financial institutions. 21. The Defendants again aver that the Plaintiff is also responsible for the 1st Defendant’s inability to sell the said plot in other to use the proceeds to liquidate its indebtedness to the Plaintiff. The Defendants therefore prayed the court to grant its counter-claims and the dismissal of the Plaintiff’s claim against them. Quite unsurprisingly, the Plaintiff filed a Defence to the Counter-Claim and denied every allegation in respect of the counter-claim and prayed for its dismissal. Issues for Trial Following the breakdown of settlement the Pre-trial Judge on 23rd June, 2023 set down the following issues for trial. 1. Whether or not Defendants are indebted to the Plaintiff to the tune of Twenty two Million One hundred and Ninety-Four Thousand Two 8 of 22 hundred and Sixty three Ghana Cedis and Thirty six Pesewas (GHS22, 194, 263.36. 2. Whether or not Plaintiff is responsible for Defendants inability to sell its industrial plot at Tema to pay its indebtedness to Plaintiff. 3. Whether or not Plaintiff is mandated to pay the Defendants the sums of monies it owes GCB PLC, Access Bank, Related Parties and Agricultural Development Bank PLC as endorsed in Defendants’ Counterclaim. The Trial The Plaintiff testified during the trial. Their evidence was delivered by their representative in the person of Pearl Naa Djana Koranteng, who described herself as the Relationship Manager, Corporate Banking Department of the Plaintiff. Her witness statement filed on 24th November, 2023 was admitted in evidence as her evidence in chief. A witness statement was filed on behalf of the Defendants by the 3rd Defendant. However, when they were ordered to open their defence, counsel for the Defendants informed the court as follows: Counsel for the Defendants: The Defendants will not testify in this matter and we have closed our case. Identity of Plaintiff Before, I deal with the issues set down for trial. I believe it is needful that I consider certain issues of law that came up when counsel for the Defendant cross-examined the Plaintiff. Below is what transpired during the cross-examination of the Plaintiff by counsel for the Defendant: 9 of 22 Q: What is the name of the plaintiff in this matter? A: Agricultural Development Bank Plc. Q: And that is the name in which the writ was issued. A: Yes Q: Now take a look at your witness statement, what is the name has been disclosed at the title page of your witness statement as the name of the plaintiff? A: Agricultural Development Bank Q: The plaintiff is listed on the Ghana Stock Exchange, not so? A: Yes Q: Do you know the date the plaintiff was listed on the stock exchange? A: No Q: I am putting it to you that the plaintiff was listed on the Stock Exchange on the 12th of December 2016. A: Yes Q: I am also putting it to you that as of today, there is no company on the Registrar of Companies known as ‘Agricultural Development Bank’. A: Yes Q: So you agree with me that, your evidence in chief which is your witness statement have been filed by a company different from the company that brought us to court. A: The ‘Plc’ was an omission but it was being filed by the same company. 10 of 22 It is undisputed that as correctly stated by Counsel for the Plaintiff the name of the Plaintiff as endorsed on the Writ of Summons is “Agricultural Development Bank PLC” and the name of the plaintiff as stated on the Witness Statement is “Agricultural Development Bank”. The question which arises therefore is whether the new rendition of the name on the Witness Statement is fatal to the case of the Plaintiff. In considering this question, can it be said that the Witness intended to speak for a different juristic entity, which according to counsel for the Defendant did not even exist. My understanding of the role and function of Writ of Summons is that that the name and capacity of a party that issues the writ is that which is endorsed on the Writ of summons and not any other subsequent process following the issuance of the Writ of Summons. Therefore I do not find it as fatal where a Plaintiff or for that matter any party under- describes its name in subsequent processes and the description does not fundamentally change the identity of the party so as to render it confusing. Such mis-descriptions to my mind does not fundamentally change the identity of the Party for it to be said that it is a different party giving evidence. I therefore do not accept that the omission of the last words of the name of the company, which in this case is “Public Limited Company (PLC)” on the face of the witness statement to mean that the entity endorsed in the title of the witness statement is different from Plaintiff entity and therefore non-existent. Issue 1 11 of 22 The first issue for determination is whether or not Defendants are indebted to the Plaintiff to the tune of Twenty two Million One hundred and Ninety-Four Thousand Two hundred and Sixty three Ghana Cedis and Thirty six Pesewas (GHS22, 194, 263.36 As stated earlier, the case of the Plaintiff derives from an alleged loan facility agreement to advance a loan of GHS15, 000,000.00 to the 1st Defendant. Again as stated earlier, the Defendants in their Statement of Defence denied the said averment by the Plaintiff which is contained in paragraph 5 of the Statement of Claim. The Defendants response to paragraph 5 of the Statement of Claim was expressed in paragraph 3 of the Statement of Defence as follows: 3. The Defendants deny the averments in paragraph 5 of the Statement of Claim and put the Plaintiff to strict proof. Given the denial by the Defendant of the factual antecedents of the alleged relationship between the parties, the question which arises is which of the parties bore the legal burden to establish the existence or non-existence of the claim alleged by the Plaintiff. My understanding of the law is that he who alleges bears the obligation to but before the court the requisite evidence to establish that which is alleged. In this case I find from the examination of the pleadings that it is the plaintiff which is making these allegations against the Defendants, accordingly, it is my considered view that they will be saddled with the duty to proof their allegations against the Defendants. This position is supported by Statute and case law. Sections 10(1) (2) (b), 11(1) (4), 14 and 17 of the Evidence Act, 1975, NRCD 323 sets out the burden and the standard of proof required in civil trial. The import of these provision was captured in the case of Okudzeto 12 of 22 Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867. The court explained the law governing proof as follows: “If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.” Ababio v Akwasi III [1994-95] GBR 774@777 in determine the respective legal burdens in this matter. In this case it was held that: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue” Finally, the manner in which the evidential burden was to be discharged was stated in the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 as follows: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be 13 of 22 proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and (11(2) and (4) of the Evidence Act, 1975, (NRCD 323)”. The evidence of the plaintiff representative was not dissimilar to their pleadings regarding basis of their action against the Defendant as arising out of a loan agreement between the Plaintiff and the 1st Defendant. The plaintiff’s testimony is that they pursuant to a loan facility agreement dated 7th September, 2020 they granted the Defendant a loan of GHS15,000,000.00 for a specific purpose. That is the said loan was to be used exclusively as working capital to finance the purchase of cocoa for the 2020/2021 crop season. Notwithstanding the denial by the Defendant of the loan facility of GHS15,000,000.00 which was made out to them by the Plaintiff, counsel for the Defendants failed to challenge the Plaintiff’s representative evidence regarding the said loan advanced to the 1st Defendant. So what inferences can the court draw from the failure of the Defendants to challenge this piece of evidence. Two cases will demonstrate how the courts views failure of a party to cross-examine on material evidence led by against another party. The first case is Evelyn Frimpomaa Owusu v James Owusu (H1/144/2010) delivered on 17th March, 2011, in this case the Court of Appeal stated as follows: “Cross-examination among other things, affords the party doing the cross-examination the opportunity to put up his case across. He does this by putting to his opponents or his opponent’s witness so much of his case as relates to that witness, or by putting the witness 14 of 22 that aspect of his own case in which that witness has any share or interest. Where, for example, the testimony of the plaintiff on an issue is not exactly what the position of the defendant on that issue is, counsel for the defendant is obliged by his cross-examination to indicate how much of the testimony he accepts, and how much of it he disputes or rejects and he will also put forward what the defendant’s position on the issue is going to be. If in a situation like this, counsel for the defendant keeps quiet about the plaintiff’s testimony or fails to ask questions about it, he will be taken to accept the plaintiff’s statement in its entirety”. I again refer to the case of Danielli Construction Ltd v Mabey & Johnson Ltd (2007-2008) SCGLR 60 where the Court concluded that the plaintiff’s failure to cross-examine the Defendant’s witness amounted to an admission. It was reported at page 65 of the said report as follows: “The Plaintiff Company did not cross-examine the witness of the defendant company in the witness box when he gave that evidence. The plaintiff company did not also tender any evidence to challenge the veracity of the evidence in Exhibit 2 and the inference was that it admitted the import of the evidence.” Plaintiff also tendered a letter dated 31st March, 2022 (Exhibit “H”) which was authored by Counsel for the Defendants. The evidence of the Plaintiff that it was the defendants which caused to be issued the said letter was not challenged by the Defendants. Paragraph 3 of Exhibit “H” contains an acknowledgement of the antecedents of the relationship between the Plaintiff and the Defendant as follows: “Our client acknowledges an approved facility of Fifteen Million Ghana cedis (GHS15, 000,000.00) granted to it on September 7, 2020 as bank guarantee to COCOBOD”. 15 of 22 From the principles laid down in the two cases cited supra and the evidence before the court, I find that the Plaintiff has put before the court evidence to establish on the balance of probabilities that they advanced an amount of GHS15,000,000.00 to the 1st Defendant as a loan under the terms contained in paragraph 6 of the Plaintiff witness statement as follows: “6. …The tenure of the loan facility was twelve (12) at 7% per annum above the Ghana Reference Rate prevailing from time to time making the interest rates of the facility 21.77%....” I will not proceed to deal with whether or not the Defendants are indebted to the Plaintiff in the amount of GHS22, 194, 263.36 at 1st July, 2022. The evidence of the Plaintiff is that the Defendant breached the repayment terms of the contract. So on 15th March, 2022 they wrote to inform the Defendants about the breach and demanded the full repayment of the outstanding balance which stood at GHS19, 057, 890 as at 28th February, 2022. My understanding of this piece of evidence is that after the expiration of the Twelve month tenure of the loan, which commenced on 7th September, 2020, the Plaintiff liability as at 28th February, 2022 was GHS19, 057, 890. The Plaintiff tendered the said letter dated 15th March, 2020 (Exhibit “G”) and the response of the Defendants to the said demand. The said letter written by the Defendant is dated 31st March, 2022 (Exhibit “H”). Exhibit “H” was written by counsel for the 1st Defendant at the behest of the 3rd Defendant, in his capacity as Managing Director of the 1st Defendant. Paragraphs 2, 3, and 5 of the said letter states as follows: 16 of 22 “Your letter on the above subject matter dated March, 15, 2022 has been handed to us by our client with instructions to reply to the same. We wish to inform your goodself that our client has appointed our Achie Martin Danso (Jnr.) Esq as its lawyer to oversee all processes towards the final liquidation of its indebtedness to your bank Our client acknowledges an approved facility of Fifteen Million Ghana cedis (GHS15, 000,000.00) granted to it on September 7, 2020 as bank guarantee to COCOBOD. We are instructed by our client to inform you that it has engaged your bank on the Steps taken in the last few weeks to ensure that its indebtedness to your bank is fully settled; which steps include the following:” The letter then proceeds to details actions the Defendants intend to take to liquidate the loan amount. Firstly, from these letters tendered by the Plaintiff, I find an admission or acknowledgment by the Defendants that the 1st Defendant had breached the repayment terms and secondly that the outstanding indebtedness standing against its name as at 28th February, 2022 stood at GHS19, 057, 890. My finding is further supported by the fact that the Defendants failed to cross-examine on this issue. The Plaintiff also stated that since the said GHS19, 057, 890 continued to accrue interest from 28th February, 2022, the outstanding balance as at 30th June, 2022 stood at GHS22, 194, 263. 36. 17 of 22 My view of this outstanding debt new balance is that, the Plaintiff failed to put before the court evidence of how they arrived at this figure. They also failed to inform the Defendants in their demand letter which interest rate will be applied following the end of the tenure of the loan facility, or for that matter whether they continued to apply the default interest rate as stated in their facility letter as 40% per annum. My view of such matters is that, in the absence of any agreement indicating what interest rate to apply, a party cannot continue to apply the contractual interest rate, since same had not been agreed. Accordingly, since the court there is no evidence before the court setting out how the interest rate was calculated, I take the view that the court will apply the provisions of COURT (AWARD OF INTEREST AND POST JUDGEMENT INTEREST) RULES, 2005 (CI 52) on the outstanding sum of GHS19, 057, 890 as at 28th February, 2022. Finally, regarding the liability of the 2nd and 3rd Defendants in this matter the Plaintiff’s evidence in paragraphs 4 and 5 of the witness statement is as follows: 4. I will testify that the 2nd Defendant is a limited liability company incorporated under the laws of Ghana and having its registered office in Accra and jointly executed a deed of mortgage for the repayment of a loan granted by the Plaintiff. 5. I will testify that the 3rd Defendant is the Managing Director of the 1st Defendant Company and a guarantor of the loan facility extended to the 1st Defendant Company by the Plaintiff, by virtue of a contract of indemnity dated 28th September 2020. 18 of 22 The Plaintiff continued in paragraph 8, 9, 10 and 11 of their Witness Statement as follows: 8. I will testify that 1st Defendant acting through 3rd Defendant assigned their Cocoa Take over Receipts for the 2020/2021 crop season to the Plaintiff. I have attached to my witness statement and labelled same as Exhibit D a copy of Assignment of Receivables. 9. I will say that by a contract of indemnity dated 28th September, 2020, the 3rd Defendant issued an indemnity in favour of the Plaintiff. By the said contract of indemnity, the 3rd Defendant agreed to pay and satisfy the Plaintiff all sums of money which may become due and owing in case of default by the 1st Defendant in settling its debts obligations to the Plaintiff. I have attached to my Witness Statement and labelled same as Exhibit E a copy of the temporal overdraft dated 28th September, 2020. 10. I will say that as collateral security for the repayment of the banking facility aforementioned, the 1st Defendant and Global Haulage Company Ltd executed a deed of mortgage dated June 9th 2021 over a piece or parcel of land measuring approximately 24.10 acre situate at Apowa in the Ahanta West District in the Western Region, by which charges were also created over the 3rd Defendant’s assets both fixed and floating. I have attached to my witness statement and labelled same as Exhibit F a copy of the said deed of mortgage dated 9th June, 2021. 11. I will testify that prior to the execution of the deed of mortgage June 9th 2021, the 3rd Defendant delivered to the Plaintiff a Deed of Assignment dated 20th September, 2018 executed between Kojo Bankam and Global Haulage Company Ltd acting by its managing Director Alhaji Abdul Aziz Adamu Iddrisu which covered the piece or parcel of land subject matter of the deed of mortgage. 19 of 22 I have examined the various exhibits tendered by the Plaintiff linking the 2nd and 3rd Defendants to an obligation to Plaintiff to use their landed assets as collateral for the loan procured by the 1st Defendant. I further find that only the 3rd Defendant agreed to pay and satisfy the debts of the 1st Defendant upon demand. Again the defendant failed to cross-examine the plaintiff on this issue and equally failed to testify on the issue. I therefore find that only the 2nd and 3rd Defendant are liable for the payment of the outstanding debt. I finally find that Plaintiff have the contractual right to realise the collateral in satisfaction of the liabilities. Issue 2 & 3 I will deal with issues 2 and 3. These issues are whether or not Plaintiff is responsible for Defendants inability to sell its industrial plot at Tema to pay its indebtedness to Plaintiff and Whether or not Plaintiff is mandated to pay the Defendants the sums of monies it owes GCB PLC, Access Bank, Related Parties and Agricultural Development Bank PLC as endorsed in Defendants’ Counterclaim Counter-claim I respectfully find from the pleadings that these allegations were made by the Defendant for purposes of establishing their counter-claim. So the threshold question which arises is which of the parties is saddled to put before the court evidence in proof of these issues. It is trite law that the counter-claimant is in same position as a plaintiff when it comes to the establishment of their counter-claim. This is essentially because a counter-claim is essentially an independent action. In the case of Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 901, the Supreme Court held as follows: 20 of 22 “A party who has counter-claimed bears the burden of proving his counter-claim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counter-claim on the strength of his own case and not on the weakness of his opponent’s case”. Unfortunately, the Defendant failed to testify. Accordingly, I find that having failed to put before the court evidence to discharge its burden, no prima facie case has been established to form the bases for the shifting of the burden on the plaintiff to adduce evidence. Accordingly, I find that the Defendants has failed to put before the court evidence to establish on the balance of probabilities their counter-claim. Accordingly the counter-claim of the Defendant will be dismissed. Alternative Reliefs Plaintiff also prayed an alternative relief for an order for the judicial sale of the mortgaged property. My view of the matter is that the law already provides a procedure for the realisation of collateral, therefore the Plaintiff is encouraged to apply themselves to these provisions in the Borrowers and Lenders Act, 2022 (Act 1052) in this regard. Be that as it may, the alternative relief remains an alternative. This therefore means that once the court finds it expedient to grant one of the alternatives, the other becomes moot. Conclusion In conclusion, I find that the Defendant has failed to put before the court evidence to establish its counter-claim, same is accordingly dismissed. In respect of the plaintiff, I am satisfied with the evidence led and I find as a consequence thereof that the Plaintiff has put before the court evidence to establish on the balance of probabilities the reliefs sought against the Defendants. I accordingly enter judgment for the Plaintiffs as follows: 21 of 22 1. The Plaintiff is ordered to recover the sum of GHS19, 057, 890 from the defendants. 2. Interest on the said amount of GHS19, 057, 890 at the prevailing bank rate and at simple interest from 28th February, 2022 to date of final payment. 3. Cost of Twenty-Five thousand Ghana Cedis against the Defendant in favour of the Plaintiff Emmanuel Atsu Lodoh, J (Justice of the High Court) Lawyers 1. Kwadwo Antwi Tabi, Esq. for the Plaintiff 2. Archie Danso, Esq. for the Defendant. 22 of 22