Frederick Amuaful Trading t/a Perfect Time Micro Credit Services v Gibril (G/WJ/DG/A2/42/2023) [2025] GHADC 196 (25 June 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON WEDNESDAY, THE 25TH DAY OF JUNE, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE. SUIT NO. G/WJ/DG/A2/42/2023 FREDERICK AMUAFUL TRADING PLAINTIFF UNDER THE NAME PERFECT TIME MICRO CREDIT SERVICES VRS ABASS GIBRIL DEFENDANT PARTIES ARE PRESENT LEGAL REPRESENTATION: YAW DANKWAH ESQ. FOR PLAINTIFF ROBERT TWENE ESQ. FOR DEFENDANT JUDGMENT Plaintiff filed an amended writ and statement of claim with leave of the court dated 30th November 2023 at the registry of this court on 21st December 2023 for the following reliefs; a. Recovery of the sum of Two Hundred and Fifty-One Thousand, Eight Hundred and Twenty-Four Ghana Cedis, Thirty-Five Ghana Pesewas from the defendant being the total indebtedness owed by defendant to the plaintiff’s company in respect of three separate loans granted to the defendant by plaintiff’s company of which the defendant has since failed to pay despite repeated demands. b. Costs including legal fees. c. Interests on GHC251,824.35 On 8th February 2023, defendant filed notice of appointment of solicitor and on 15th February 2023, he filed a statement of defence pursuant to leave granted by this court on 25th January 2023. Parties were referred to the Court Connected Alternative Dispute Resolution for amicable settlement of this dispute however the feedback from the mediator dated 20th February 2023 indicated that parties were unable to reach any terms of agreement. According the court set down the issue for trial. PLAINTIFF’S CASE Plaintiff’s case is that a credit facility of Fifty Thousand Ghana Cedis (GHC50,000.00) was granted to the defendant at the rate of six percent per month and payable on the 19th March 2022. It is the further case of the plaintiff that on 23rd August 2021, another loan facility of Sixty Thousand Ghana Cedis (GHC60,000.00) was advanced to defendant at the rate of six percent per month payable on 7th February 2022. Plaintiff adds that an additional loan facility of Thirty-Six Thousand Ghana Cedis (GHC36,000.00) was advanced to defendant at the rate of six percent per month payable on 10th January 2022. According to plaintiff, parties entered into a credit facility agreement in respect of all the three loans granted by plaintiff and all parties signed the said agreement. Plaintiff averred that the total sum advanced to defendant amounted to One Hundred and Forty-Six Thousand Ghana Cedis and the total interests payable on the said sum is Two Hundred and Sixty-Five Thousand and Twenty Ghana Cedis, Thirty-Five Ghana Pesewas making a total of Four Hundred and Eleven Thousand and Twenty-Four Ghana Cedis, Thirty- Five Pesewas being both principal and interests. Plaintiff averred further that defendant has not been consistent with payment of the loans and that the total sum paid by the defendant in respect of the three loans that is principal and interest is One Hundred and Fifty-Nine Thousand, Two Hundred Ghana Cedis leaving an outstanding balance of Two Hundred and Fifty-One Thousand, Eight Hundred and Twenty-Four Ghana Cedis, Thirty-Five Ghana Pesewas. Plaintiff added that defendant has failed to honour his obligations under the agreements despite repeated demands. Plaintiff concluded by stating that defendant’s failure to pay his indebtedness is seriously affecting plaintiff’s business. He prayed the court to compel the defendant to pay his outstanding indebtedness to plaintiff. The plaintiff relied on the following exhibits to back his claim; 1. The credit facility agreement dated 18th March 2021 marked as Exhibit A 2. The credit facility agreement dated 22nd August 2021 marked as Exhibit B 3. The credit facility agreement dated 10th November 2021 marked as Exhibit C 4. Loan statements depicting the loans granted to defendant and the repayment with interests and the outstanding balance to be paid marked as Exhibit D series. 5. The collaterals used to secure the said loans marked as Exhibit E series. 6. The company’s business certificate and license to operate marked as Exhibit F series. DEFENDANT’S CASE Defendant on the other hand averred that he used to take loans from plaintiff to augment his business by using it to clear goods from the harbour. It is his case that he has taken loans from plaintiff since 2018 and pays as soon as payments fall due. It is his further case that between March 2021 to November 2021, he took various sums of money amounting to GHC146,000.00 from plaintiff and has paid to plaintiff a total sum of GHC159,200.00. He added that the interest of 6.5% per month on a particular transaction for a year which is 78% per annum is outrageous, unconscionable and unjust. According to him, plaintiff combined all three transactions and calculated interest on the total amount which is erroneous in law. Defendant averred that whatever money he took from plaintiff has been paid through various momo transactions it did in favour of the plaintiff and as a result he does not owe a pesewa. He concluded that ordering him to pay the amount stated on plaintiff’s relief (a) will amount to unjust enrichment on the part of the plaintiff. The issue set down for determination is whether or not plaintiff is entitled to recover the sum of GHC251,824.35 from the defendant. BURDEN OF PROOF It is trite that the burden of proof will generally lie on the party asserting the affirmative of an issue, the absence of the defendant notwithstanding. Section 11 of the Evidence Act, 1975 NRCD 323 provides; (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 that its non-existence. Section 12 of NRCD 323 reads; (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 also provides that in a trial, the burden of proof may shift but 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. This principle of law is reiterated in the case of RE: ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS V KOTEY & OTHERS [2003-2004] SCGLR 420 where Woode JSC (as she then was) at page 444 stated; It is trite learning that by the statutory provisions of the Evidence Decree 1975, (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial depending on the issues asserted and or denied. The means of effecting proof was explained in MAJOLAGBE V LARBI [1959] GLR 190, where Ollenu J. (as he then was) held that: “Proof, in law is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment and his averment is denied, he is unlikely to be held by the court to have sufficiently proved that averment by his merely going into the witness box, and repeating his averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” COURT’S ANALYSIS OF THE EVIDENCE AND OPINION The issue before this court is whether or not plaintiff is entitled to recover the sum of GHC251,824.35 from the defendant? It is undisputed from the evidence that parties entered into three credit facility agreements for three separate loans, the first being a loan of GHC50,000.00 at the rate of 6% per month payable on 19th March 2022, the second being a loan of GHC60,000.00 at the rate of 6% per month payable on 7th February 2022 and the third loan of GHC36,000.00 at the rate of GHC6% per term payable on 10th January 2022. Plaintiff relied on Exhibit D series to back his claim that defendant was indebted to plaintiff to the tune of GHC251,824.35 Counsel for the defendant contends that Exhibit D series are not authentic documents which should be relied on by the court to take any legal decision in the sense that they are not on any official letter head and because they were not paginated, they render same irrelevant. At paragraph 6 of defendant’s statement of defence, he stated that he took the total sum of GHC146,000.00 from the plaintiff and that he has paid all the money to plaintiff without owing the plaintiff any money. At paragraph 7 of defendant’s witness statement, he stated that he has paid GHC159,200.00 being the principal amount he took which plaintiff cannot deny and has admitted in his witness statement. Plaintiff denied the assertion of the defendant as depicted in the exchanges reproduced below during cross examination of plaintiff by defendant; Q: You see, I suggest to you that the defendant has paid you every pesewa that he took from you A: No because we had an agreement that indicated how much was to be paid within a stipulated period of time so he should provide his evidence to show how much he was to pay and how much he has paid so that we can confirm whether he has finished paying or not. Q: In all, defendant has paid you GHC159,300.00 without any outstanding amount left to be paid A: My lady that is not true. Because I have provided proof with Exhibit D series but even on a mere possible check, the difference between the amount disbursed in total which is GHC146,000.00 and the total amount paid which is GHC159,300.00, it is not even up to two months interests per the interest rate of 6% that was quoted considering the fact that this amount has been with the client for almost two years that is even at the time of filing. Counsel for the defendant in his address, argued that an interest of 6% per month on a particular transaction for a year is 72% per annum which is outrageous, unconscionable and unjust and ordering the defendant to pay the said amount to the plaintiff will amount to unjust enrichment on the part of the plaintiff. During cross examination of the plaintiff, plaintiff stated that he had been doing business with defendant between 2018/2019. According to plaintiff, defendant took earlier loans of GHC12,000.00 and GHC25,000.00 at 6.5% per month and he paid those monies with the said interest rate without any problem. Plaintiff’s assertion stood unchallenged. In deed during cross examination of the plaintiff by defendant, the following information was elicited; Q: Since when did I start doing business with you? A: If I recall, it may be 2018/2019 Q: How did you give me three loans at a go if I was not honouring my obligations to you in previous transactions? I find from the evidence that defendant has been doing business with plaintiff since 2018/2019 and has honoured his obligations in previous transactions at these same interest rates of 6% or at an even higher rate of 6.5%. The question is, what has changed now? It will lie ill in the mouth of the defendant to complain about the interest rates now. Plaintiff’s Exhibits A, B and C shows that defendant was fully aware of the terms and conditions of the loan facilities advanced to him by the plaintiff and duly appended his signature to all three Exhibits as an acceptance of plaintiff’s offer. It is trite that, where a document containing contractual terms is signed, in the absence of fraud or misrepresentation, the party signing it is bound by the terms of the agreement. In Allan Sugar (Products) Limited v Ghana Export Company Limited [1982-83] GLR 992, Francois J.A (as he then was) held as follows: “It is not the function of the courts to rewrite an agreement for the parties by inserting terms that would be beneficial. But the fuller statement of the law however is that where the parties have reduced into writing their intentions, they are bound by their written word and the use of extraneous materials as aids to interpretation can only be resorted to in extreme cases of genuine doubt.” This principle of law was re-echoed in the case of Poku v Ghana Commercial Bank [1989- 1990] 2 GLR 37 at 39 as follows; “Parties to a contract would not be permitted to avoid the contract unless there were valid reasons to do so. It is not the duty of the courts to make contracts for parties. And where the terms of a contract have been reduced into writing, the court would interpret them to give effect to the intentions of the parties.” From the Exhibit A, B and C referred to supra, all the loans that were advanced to defendant by the plaintiff attracted an interest of 6% per month. It is my considered view that defendant’s attempt to isolate the interest from the principal sum of GHC146,000.00 amounts to a breach of the facility agreements between the parties. Section 59(3) of the Borrowers and Lenders Act 2020 (Act 1052) reads; Unless otherwise agreed by the parties, the amount required to settle a debt in a credit agreement is the total of a) The principal amount b) The accrued interest charges c) A prepayment charge if any agreed between the borrower and the lender and other fees and charges payable by the borrower to the lender up to the date for settlement. In Barclays Bank Ghana Ltd v Sakari [1996-97] SCGLR 639 at 646, Acquah JSC held as follows; “Now what is the obligation created under a 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 interests if any. This is the obligation of the parties under this loan 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, let us 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 has contracted for. He will still be obliged to fulfil 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.” Applying the law cited supra to the totality of the evidence before me, I find that the defendant having taken three separate loans from the plaintiff at an interest rate of 6% per month per loan, from the face of Exhibits A, B and C, the sum of GHC159,200.00 paid by him in my considered view can certainly not pay off the sum total of the principal plus interests payable under the three facility agreements. Accordingly, I find the story of the plaintiff to be more probable. Judgment is entered in favour of the plaintiff against the defendant as follows; 1. Defendant is ordered to pay the sum of GHC251,824.35 to the plaintiff with interests at the prevailing commercial bank rate from November 2021 to the date of full and final settlement. 2. Costs of GHC30,000.00 is awarded in favour of the plaintiff against the defendant. ................................................ H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)