LAWRA AREA RURAL BANK VRS BOODEME & ANOTHER (UW/WA/HC/E2/8/2019) [2024] GHAHC 350 (16 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON THURSDAY 16TH MAY 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE SUIT NO. UW/WA/HC/E2/8/2019 LAWRA AREA RURAL BANK P.O. BOX 36 PLAINTIFF LAWRA VRS. 1. SOLOMON BOODEME OF BOODEME VENTURES 2. THE HEAD OF BOODEME DEFENDANTS FAMILY KO-SENTU IN THE NANDOM DISTRICT JUDGMENT INTRODUCTION By a Writ of Summons and Statement of Claim dated 8th May, 2019, the Plaintiff herein instituted the instant action against the Defendants jointly and severally, praying this Court for the following reliefs: a. Recovery of the sum of Sixty Thousand Cedis (GHS60,000.00) being principal loan amount advanced to the 1st Defendant. b. Accrued interest on the amount of GHS60,000.00 being GHS33,127.78 1 | Page c. Damages for breach of contract d. Costs e. Further proceedings would be stayed if the Defendants within the period limited for appearance pay into court or to the Plaintiff the amount claimed by the Plaintiff. Defendants entered appearance on 16th May, 2019. 1st Defendant filed a Statement of Defence on 2nd March, 2021. 2nd Defendant did not file a Statement of Defence. PLAINTIFF’S CLAIM Plaintiff is a body corporate incorporated under the erstwhile Companies Act 1963 (Act 179) carrying out rural banking services in the Upper West Region with its Head Office in Lawra. Plaintiff says that the 1st Defendant is the Manager of Boodeme Ventures in the Lawra District. The 2nd Defendant is the customary successor of the late Philip Luke Boodeme. Plaintiff says that on 5th May, 2017 the 1st Defendant who described himself as the Manager of Boodeme Ventures submitted an application to the former Manager of the Plaintiff for a loan of GHS60,000.00. The Manager of the Plaintiff at the time was the father of the 1st Defendant, the late Philip Luke Boodeme. Plaintiff says the loan was granted at an interest rate of 24% repayable in 12 months with a monthly instalment payment of GHS8,266.70 which was duly acknowledged by the 1st Defendant. The late Luke Boodeme granted the loan to Boodeme Ventures without prior approval from the Management of the Plaintiff. On a routine inspection by officials of Bank of Ghana, the loan granted Boodeme Ventures was disclosed. As a result, the late Philip Luke Boodeme wrote and apologized for his actions and accepted to pay off the balance by use of his SSNIT retirement lump sum. The total indebtedness stands at GHS93,127.78. 2 | Page The said Philip Luke Boodeme is currently deceased. Plaintiff contends that the liability incurred by the late Philip Luke Boodeme survives his death and binds his successor or personal representative. 1ST DEFENDANT’S CASE In his Statement of Defence, 1st Defendant avers that Boodeme Ventures is the property of the late Philip Luke Boodeme and he was only a signatory of the account of the business entity. 1st Defendant says he operated the business entity on behalf of his late father, Philip Luke Boodeme. 1st Defendant says that he only acted on behalf of Boodeme Ventures which has a separate legal entity from the 1st Defendant. 1st Defendant asserts that at all material times the Plaintiff knew the loan was granted to Boodeme Ventures and not to him personally. 1st Defendant claims that the late Philip Luke Boodeme had some benefits with the Plaintiff Bank which could be used to liquidate the indebtedness. ISSUES SET DOWN FOR TRIAL The following issues were set down for trial: a. Whether or not the Plaintiff advanced a loan in the sum of GHS60,000.00 being the principal loan amount to the 1st Defendant which the 1st Defendant defaulted in paying b. Whether or not the 1st Defendant is liable to repay the above mentioned loan with the accumulated interest which now stands at GHS93,127.78 3 | Page c. Whether or not the 1st Defendant is a separate entity from Boodeme Ventures. d. Whether or not Plaintiff is entitled to its claim or reliefs. e. Any issues raised by the pleadings BURDEN OF PROOF What is the burden of proof that the Plaintiff in this case has to establish? On the burden of proof in civil cases, the Supreme Court in Poku v. Poku [2007-2008] 2 SCGLR 996 at 1022 per Georgina Woode CJ stated the statutory duty on a party in a civil suit to discharge the burden of proof when it held as follows: “It raises the legal question of who bears the burden of persuasion in such civil matters, …….. Who has the onus of proof and what degree or standard of proof? Generally speaking, this depends largely on ……. The facts averred and therefore the facts in issue……Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of Section 12(2) of the Evidence Act, 1975 (NRCD 323)”. In the case of GIHOC Refrigeration and Household Ltd v Hanna Assi [2007-2008] 1 SCGLR1, Akuffo JSC explained that the standard of proof in all civil matters is …based on a determination of whether or not the party with the burden of producing evidence on the issues has, on all the evidence satisfied the judge of the probable existence of the fact in issue. The principle as stated in the Poku v. Poku case (supra) is based on Sections 10, 11, 12 ,14 and 17 of the Evidence Act, 1975 (NRCD 323) which states as follows: 4 | Page Section 10(1) “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning the fact in the mind of the tribunal of fact or the court.” Section 10(2) “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.” Section 11(1) and (4) of NRCD 323; (1) “For the purposes of this decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” (4) “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 12 of NRCD 323 (1) “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” Section 14 of NRCD 323 “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” 5 | Page Section 17 of NRCD 323 (1) “Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.” (2) “Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to the fact.” It is trite law that the matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. In the case of Takoradi Flour Mills v. Samir Faris [2005 -2006] SCGLR 882, it was held that when the plaintiff has been able to discharge the burden of proof on him, and has by his evidence established facts from which an inference can reasonably be drawn in his favour, then the onus would shift on the defendant. From the foregoing, it is apparent that the legal burden/burden of persuasion at all material times lies with the Plaintiff to prove its case; however, the burden to produce evidence may shift where necessary to the Defendant. See to the case Sumaila Bielbel (No. 3) v Adamu Dramani & Attorney -General [2012]SCGLR 370 at 371 which states ‘the distinction between the two burdens of proof, namely, the “burden of persuasion” as defined in section 10(1) and the “burden of producing evidence” as defined in Section 11(1) of the same Act, is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to bring leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant.’ 6 | Page Further reference is made to pages 29, 74 and 75 of Essentials of the Ghana Law of Evidence by S.A. Brobbey JSC where the learned author state as follows, ‘when it is said that the burden of proof shifts, what is meant is that after one party has adduced sufficient evidence to prove his point, the burden will move to the opposing party to adduce more cogent evidence which will disprove the opponent’s case and induce the Court to believe him and rule in his favour. The shifting of the burden applies only to the burden to produce evidence’ It is thus trite that where the Plaintiff produces evidence to prove any fact in issue, the burden of producing shifts to the Defendant to produce such relevant evidence to disprove the Plaintiff’s case. Holding 5 of the Takoradi Flour Mills case (supra) states that; “……. this being a civil suit the rules of evidence require ……..that in assessing the balance of probabilities, all the evidence, be it that of plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict……..” EVIDENCE FILED BY PARTIES In proving its case, the Plaintiff in accordance with the High Court (Civil Procedure) (Amendment) Rules, 2014 C.I. 87, (C.I.87) and the orders of this Court filed a Witness Statement on 26th April, 2021 for Frederick Attah Diegol. The following documents attached to the Witness Statement of the said witness were marked and tendered without objection as follows: (i) EXHIBIT ‘A’ Certificate of incorporation of Plaintiff Bank; (ii) EXHIBIT ‘B’ Certificate to commence business of Plaintiff Bank. (iii) EXHIBIT B: license to operate as a bank (iv) EXHIBIT C: Application for loan by the 1st Defendant 7 | Page (v) EXHIBIT D: Loan approval letter by the Plaintiff (vi) EXHIBIT D1: Acceptance of loan (vii) EXHIBIT ‘E’: Letter of Apology (viii) EXHIBIT ‘F’: Demand Notice During trial the registration documents of Boodeme Ventures were tendered through Plaintiff Witness as Exhibit 1. The Defendant filed his Witness Statement on 24th May, 2021. During trial he tendered registration documents of Boodeme Ventures as Exhibits 1 and 2 in support of his case. DETERMINATION OF ISSUES The Court will now proceed to determine the issues set down for trial: Whether or not the Plaintiff advanced a loan in the sum of GHS60,000.00 being the principal loan amount to the 1st Defendant which the 1st Defendant defaulted in paying The loan advanced by the Plaintiff was premised on an application, Exhibit C. On the face of Exhibit C, the Applicant identifies as a poultry farmer and a bread baker, located at Low Cost Songbaala Street in Lawra and provides account details for the loan in the name of Boodeme Ventures. Exhibit C is however signed by the 1st Defendant herein. In Exhibit C, there is no indication that the application was made on behalf of any other person but the 1st Defendant. The letter is written in 1st person singular and signed by the 1st Defendant. The Court finds that it is the 1st Defendant who applied for the loan. This finding is further strengthened by Exhibit 1, in which the nature of business of Bodeme Ventures is stated as, General Trading, General Supplies, Farming, Import and Export of Goods, Civil Works and Building Construction. This is quite different from what the applicant of 8 | Page the loan says he is, a poultry farmer and bread baker. Further, on Exhibit 1, Boodeme Ventures is located at Sentu in the Wa Municipality. The location of the Applicant as per Exhibit C is Low Cost Songbalaa Street in Lawra. From Exhibits 1 and C therefore, Boodeme Ventures could not have been the Applicant of the loan. The Court has observed that the account details for the loan belong to Boodeme Ventures, however, in accepting the loan, the 1st Defendant identifies himself as the Applicant on the face of Exhibit D1. In his evidence in chief, the 1st Defendant says at paragraph 9 that he applied for the loan on behalf of Boodeme Ventures at the request of the late Philip Luke Boodeme. The Court however finds that, this cannot be the case because, the person at whose request 1st Defendant claims he applied for the loan was the Manager at the Plaintiff Bank and could have made the application for Boodeme Ventures if he so wished. Furthermore, at the time of applying or accepting the loan, there was no indication that the loan was applied for and accepted at the request of the sole proprietor. At all material times during the application and acceptance, the 1st Defendant held himself out as the Applicant of the loan but using the account of Boodeme Ventures, his father’s business. Section 26 of the Evidence Act 1975 (NRCD 323) provides that ‘Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and (b) the relying person or successors in interest of that person.’ The court of Appeal in the case of AGNES YIRENKYI V. GEORGE ATTA GYIMAH, EVANS OPOKU GYIMAH AND CECILIA KUKUA (2014) JELR 65419 (CA) held that, 9 | Page ‘It has well been established that, in particular cases, where a man has so conducted himself that it would be unfair or unjust to allow him to depart from a particular state of affairs which another has taken to be settled or correct, the court ought not to permit him to retreat from his earlier stance: Panchand Freres S.A v. Et General Grain Company (1970) 1 Lloyds Rep. 58…Estoppel is not a rule of evidence, it is not a cause of action. It is a principle of justice and equity. It comes to this: when a man, by his words or conduct has led another to believe in a particular state of affairs he will not be allowed to go back on it when it would be unjust or inequitable for him to do so…Thus, estoppel will be held to operate by reason of a person’s conduct which had led another to believe a state of affairs even though the person never intended it to be that way.’ (See also BOUSIAKO CO., LTD. V. GHANA COCOA MARKETING BOARD; KWABO- OSEKYERE CONSTRUCTION WORKS LTD. AND. GHANA COCOA MARKETING BOARD (CONSOLIDATED) [1982-83] GLR 824) From the above authorities, the Court is convinced that at the time of the Application of the loan and the acceptance of same, the 1st Defendant held himself out as the Applicant of the loan and as such, it will be unjust and inequitable to allow him escape liability for his conduct. In the circumstances, the Court hereby holds that the Plaintiff advanced a loan in the sum of GHS60,000.00 being the principal loan amount to the 1st Defendant which the 1st Defendant defaulted in paying Whether or not the 1st Defendant is liable to repay the above mentioned loan with the accumulated interest which now stands at GHS93,127.78 Acquah JSC in the case of Barclays Bank of Ghana v Sakari [1997-98] 1 GLR 746 - 767 explains the obligations of parties under a loan agreement as follows, ‘Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the defendant was to repay the loan together with interest, if any. This is the obligation of the parties under this loan 10 | Page contract, and indeed, almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, lets say, a business venture, and the business flops resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he had contracted for. He will still be obliged to fulfill his obligation. Thus, the obligation of a borrower in a loan contract as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought.’ In view of the above, the Court finds that as the borrower of the loan, the 1st Defendant is liable to repay the above-mentioned loan with the accumulated interest which now stands at GHS93,127.78. Whether or not the 1st Defendant is a separate entity from Boodeme Ventures. It is trite learning that a sole proprietorship does not have a separate legal entity. It is one and the same as its owner. (See the case of Barclays Bank of Ghana Limited v Lartey [1978] GLR 282. In the instant case, the owner of Boodeme Ventures at the time of contracting the loan was the late Philip Luke Boodeme, however, in view of the discussion on estoppel by conduct discussed earlier in this judgment, the 1st Defendant cannot escape liability for loan granted by the Plaintiff, particularly when the 1st Defendant admitted during trial instances where he held himself out as a co-owner of Boodeme Ventures. (SEE RECORD OF PROCEEDINGS OF 11TH JULY, 2023 AT PAGES 35 AND 36). In the circumstances, having held himself out as a co-owner of Boodeme Ventures, the 1st Defendant cannot be separated from Boodeme Ventures. 11 | Page Any other issue arising from the pleading The Court finds it worthy to address the 2nd Defendant’s conduct in this suit. Despite being served with processes, the 2nd Defendant after entering appearance failed to contest the Plaintiff’s claim. In the case of Kombat and Lambim[1989-90] 1GLR 324 at holding 3, it was held that “The rule of evidence was that failure to cross-examine would not amount to an acceptance of the witness’ testimony if the witness had notice to the contrary... Denying one the right to cross-examine either through inadvertence or otherwise amounted to a breach of the audi alteram partem rule. Any decision adversely affecting a party denied a right of cross- examination could not be allowed to stand especially where as in the instant case, without such evidence, there was little or no conclusive evidence to support the claim.” Three questions arise from the Kombat and Lambim decision relevant to this case; The first question is that, despite the failure to cross examine is there a notice contrary to admission of the Plaintiff’s testimony? The answer is No. The 2nd Defendant herein has no defence in this matter as he failed to file any. There is thus no notice to the contrary that the witness’s evidence before this court has been denied. The second question arising from the Kombat and Lambim case is Has there been a breach of the audi alteram partem rule? Again, the answer is NO. The 2nd Defendant was notified by hearing notices to be present in court. The 2nd Defendant however failed to appear in court. The Supreme Court has held in a plethora of cases that where a party was present in court on the day the case was adjourned for hearing or was served with hearing notice but chose not to be present either by himself or counsel to be heard on the due date the audi alteram partem rule was not applicable. See the following cases: Republic v High Court (Fast Track Division) Accra; Ex parte State Housing Co Ltd (No 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v High Court (Human Rights Division) Accra; Ex parte Akita (Mancell-Egala & Attorney-General Interested Parties) [2010] SCGLR 374 12 | Page at 379. I therefore find that any decision of this court based on the unchallenged, uncontested evidence of the Plaintiff is not in breach of the audi alteram partem rule. The third and final question that arises from the Kombat and Lambim case is whether there is sufficient evidence to support the Plaintiff’s claim. In the view of this court, even though the 1st Defendant was the Applicant of the loan, the late Philip Luke Boodeme in Exhibit E accepted liability for repayment of the loan because he failed to obtain the approval of the Management of the Plaintiff before disbursing the loan. Th 2nd Defendant has not denied being the personal representative of the Late Philip Boodeme. The Plaintiff’s claim against the 2nd Defendant thus succeeds. CONCLUSION From the foregoing, the Court holds that the Plaintiff claim as set out on the Writ of Summons succeeds. COST: Cost of Twenty Thousand Cedis (GHC 20,000.00) against the Defendants in favour of Plaintiff. HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE COUNSEL SYLVESTER ISANG ESQ. FOR PLAINTIFF CHARLES POUZUING ESQ. FOR 1ST DEFENDANT 13 | Page