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JUDGMENT
AKAMBA, J.A
This is an appeal
against the judgment of E.M Boateng J. delivered on 12th
January 2001 at the Denu High Court.
The facts occasioning
this appeal as gleaned from the record are that the
plaintiff/respondent (hereinafter simply referred to as
the respondent) who is the president of the Atiavi Multi
Purpose Co-operative Society (herein after referred to
as the Society) applied on behalf of the Society in 1977
for a group loan of thirty million cedis from the
Agricultural Development Bank, Denu (hereinafter simply
referred to as the Bank). The loan was for the members
of the Society to cultivate sugar cane and distil
akpeteshie. The Bank granted the loan at an interest
rate of 31% per annum. The recipient Society disbursed
the thirty million (30 million) cedis among its members,
which included the defendant/appellant herein
(hereinafter referred as the appellant). The appellant
obtained the largest share of thirteen million cedis out
of the thirty million cedis based upon the Society's own
criterion on the number of shares held in the Society
and amount secured in the Bank. It was a condition for
the grant of the loan that failure to pay back would
render the executives of the Society jointly and
severally liable to the Bank. The appellant made part
payment of the loan and failed to make good the rest.
According to the respondent, as at the time of the
initiation of the action, the balance unpaid was
13,622,489 cedis which appellant failed to pay. The
trial court entered judgment for 14,312,391 cedis
against the appellant being the state of his
indebtedness as at 12th January 2001. The trial court
also awarded damages of three million five hundred
thousand (3.5million) cedis against the appellant for
his conduct in depriving the other members of the
Society of their right to enjoy loan facilities from the
Bank. The appellant, who initially admitted most of the
respondent's averments except for the balance of the
loan, has now turned round to challenge respondent's
capacity as well in bringing the action.
Dissatisfied with the
judgment of the Denu High Court, the appellant raised
four grounds of appeal for our determination, to wit:
(a) The judgment is
against the weight of evidence.
(b) The High Court
failed to give adequate consideration to the defendant's
case.
(c) The learned trial
judge failed to consider the legality of the interest
exacted from the defendant.
(d) The learned judge
also failed to give consideration to the issue as to
whether in the given circumstances the plaintiff had
capacity or was the proper person to sue.
The appellant also
provided for "other grounds to be filed upon receipt of
the record of proceedings ".
The appellant filed his
submissions on two only of the grounds listed supra, an
indication that he had abandoned the rest of the grounds
not dealt with. The two grounds argued in the written
submission are grounds (d) and (a) supra.
I intend dealing with
these two grounds in the same sequence adopted by the
counsel for the appellant by first resolving ground (d).
This ground questions whether the respondent given the
circumstances under consideration had capacity or was
the proper person to sue. The appellant contends that
the amount of 13,622,489 cedis being claimed by the
respondent herein in his writ of summons is money
actually belonging to the ADB and not the respondent
(plaintiff) or the Society hence the respondent cannot
sue for it. In effect, the appellant seeks to know the
locus standi of the respondent in this matter.
Appellant's contention is however, devoid of any merit
when considered in the total context of the pleadings
and the evidence on record. The thirty million cedis
loan facility was without doubt obtained from the ADB by
the Society, which in turn disbursed the amount among
its members, which included the appellant herein. The
appellant was given over 13 million cedis as his share
of the loan by the Society.
It is in evidence that
the respondent was the chairman of the Society and who
spearheaded the loan transaction and was ordered by the
ADB to collect the amount from the members. The Society
upon receipt of the loan in turn disbursed it among its
members according to the number of shares held in the
Society and amount of money secured in the bank. The
appellant qualified by the above criterion hence he was
given the largest share of thirteen million (13m.) cedis
by the Society. There is therefore a fiduciary relation
between the ADB and the Society. Against these facts and
admissions upon the pleadings one is at a loss finding
reasons for the appellant's tenacious cleavage to an
apparent lack of capacity by the respondent to sue, if
not a ploy for delay. In his statement of claim
accompanying the writ of summons, the respondent herein
stated that:
"1.
The plaintiff is the president of the Atiavi Multi
Purpose Co-operative Society Atiavi.
2.
Defendant is also a member of the said Society.
3.
Plaintiff says that the president on behalf of the
Society applied for a loan of 30,000, 000.00 from the
Agricultural Development Bank, Denu in the year 1977.
4.
Plaintiff avers that on 14th November 1977 the loan was
granted with 31% interest per annual (sic).
5.
Plaintiff further avers that the defendant also
benefited from this loan and paid part of the loan
leaving a balance of 13,622,489, which is still not paid
by the defendant. "
The appellant responded
to the above averments in his statement of defence as
follows:—
"1. Paragraphs 1, 2, 3
and 4 of the statement of claim are admitted.
2. Save that the
defendant admits benefiting from the loan and paid part
of the loan as stated in paragraph 5 of the statement of
claim, the defendant denies that the balance of the loan
to be paid by him is 13,622,489.00 "
The appellant having
unabashedly conceded the respondents' averments in his
paragraphs 1, 2, 3 and 4 cannot turn round and raise
capacity again as an issue. Frankly I cannot fathom how
the appellant can complain about the respondent's
capacity in the light of his own admissions and other
overwhelming evidence confirming the transaction between
the respondent and the ADB and the eventual disbursement
by the Society to him (appellant). This is why I find
the inclusion of the first two issues in the summons for
directions filed on 10/11/2000 reprehensible and
patently lawless following the admissions. The first two
issues in the aforesaid summons for direction state as
follows:
(a) Whether or not
plaintiff is the President of the Atiavi Multi-Purpose
Co-operative Society, Atiavi and Defendant is also a
member of the said Society.
(b) Whether or not
plaintiff applied to the Agricultural Development Bank,
Denu Branch and was granted loan to the tune of
30,000,000 cedis, which the defendant also benefited.
It is also apparent
from the inclusion of these issues that the plaintiff
did not understand what he was doing. Equally lamentable
was the trial court's acceptance of those issues for
trial for this meant that the court itself failed to
appreciate that the essence or purpose of summons for
directions, is to help determine the real issues for
trial. Why therefore set down for trial matters that are
already admitted? It is thus obvious that issues (a) and
(b) of the summons for directions are of no moment,
under the circumstance. The only issue left unresolved
and which should have been the sole issue for trial
appears to be the balance of the loan still unpaid. No
wonder that when this case came up for hearing on the
20th December 2000 the court entered judgment for the
sum of 10,752,830.00 cedis being the amount admitted by
the appellant as owed, leaving a balance of 2,869,659
cedis to be contested together with a determination of
the additional issue whether or not interest on an
agricultural loan is calculated monthly. On the question
of the loan transaction, it is clear that as between the
ADB (the loan provider) and the Society (the loan
recipient) there is a relationship of creditor/debtor.
In the same vein it was the Society that apportioned the
loan among its members including the appellant. There is
also therefore a relationship of creditor/debtor
respectively between the Society and the appellant
herein. Thus the respondent is clothed with authority to
protect the endangered interest of the Society as a
group. Since the appellant had failed to refund the
monies either directly to the Bank or indirectly through
the Society, the latter is capable of championing the
rights of the Bank since a failure to do so could render
the Society itself liable, being the actual recipients
of the group loan. On this I find support in this
court's decision in Ghana Muslim Representative Council
vs. Salifu (1975) 2 GLR 246 C.A wherein it was decided
among others that ‘a body of persons having a common
interest in a subject matter might, when that interest
was threatened or had been violated, be represented by
one or more on behalf of the whole group.’ (Emphasis
mine) The action was taken in a representative capacity
as the writ and the pleadings show thereby conforming to
the rules. Since the appellant had not honoured the
obligation to pay back the loan, the prospect of an
action by the Bank against the Society was sufficient
interest for the respondent to act as he rightly did.
This, from the evidence on record is the relationship
that informed the respondent's capacity to initiate his
action against the appellant.
The appellant also
claimed that the respondent ought to have based his
action upon a power of attorney pursuant to Act 549. He
(appellant) also cited reliance on the definition of a
power of attorney in Dzanku vs Afalenu (1968) GLR 792 @
793. I find Act 549 as well as the definition in the
above-cited authority irrelevant to the present
application. The fact of the matter here is that, the
respondent by initiating the action against the
appellant was not standing in the stead of the ADB, but
as the Society which as beneficiary of the loan had in
turn advanced credit to the appellant. At the trial in
the court below, the Bank Manager of the Agricultural
Development Bank (ADB), Denu testified as the PW2. It is
significant to recall his evidence in chief wherein he
testified that: "In November 1977 the ADB advanced a
loan of 30 million cedis to the Atiavi Multi Purpose
Society. The loan was to help them cultivate sugar cane
and distil akpeteshie." This witness also gave very
revealing answers to questions under cross-examination,
which put the issue of capacity beyond doubt. This is
what PW2 said in part:
“Q. Do you
remember I came to tell you I had been sued here and so
I needed a copy of my accounts?
A.
That is so we prepared a comprehensive account of every
beneficiary of your Society and handed over same to the
Executive.
Q. Why did not
you serve me a copy personally.
A. This is
because it was a group loan and so copies had to be sent
to the Executive.
Q. I want to know
whether it is you I owe or the Society.
A. You owe the
Bank but as a result of the regulations covering the
loan transaction we hold the executives of the Society
jointly and severally for this debt.” [Emphasis
underlined]
It is clear from the
evidence that the appellant cannot hide behind the cloak
of capacity to avoid honouring his obligations under the
loan to his Society to enable the latter in turn honour
its own obligations to the ADB on their behalf. It does
not require any authorization from the ADB for the
respondent to demand from the appellant the payment of
what it (respondent) had advanced him. This ground of
appeal is certainly frivolous and vexatious and the same
fails.
The next ground is the
usual omnibus ground of appeal, to wit, the judgment is
against the weight of evidence. In Akufo Addo vs.
Catheline (1992) 1 GLR 377, the court said that where an
appellant appealed against a judgment on the general
ground that "the judgment was against the weight of
evidence" the appellate court had jurisdiction to
examine the totality of the evidence before it and come
to its own decision as the admitted and disputed facts."
It is quite obvious that the answers given by the PW2 in
cross-examination were selected and picked as and when
they suited the purposes of the appellant thereby losing
their overall intendment and meaning. The PW2 for
instance admitted in cross-examination that the money
was owed to the Bank. The appellant infers from this
admission to mean that it is the Bank alone that should
rightfully sue him for his portion of the money and not
the respondent. Appellant also contends that the other
segment of the PW2's answer that says that the
regulations governing the loan hold the executives of
the Society responsible for the debt should not be
believed because the regulations were not tendered in
evidence. Certainly the appellant cannot pick and choose
what favours him and discard what is unfavourable
without assigning any tangible reasons why the other
portion should be disbelieved. It is not enough reason
for him to say that it should be rejected because the
regulations were not tendered in evidence. The fact is
that it was not necessary for the respondent to tender
the regulations in evidence. I say this mindful of the
fact that at no time during the cross-examination was it
suggested to the PW2 that there were no regulations
governing the transaction to that effect. This failure
to cross-examine the witness concerning the regulations
removed any need to tender such document in proof of the
averment. The legal position is that where a party makes
an averment and his opponent fails to cross-examine on
it, the opponent is deemed to have acknowledged, sub
silentio, that averment by the failure to cross-examine.
See Quagraine v. Adams (1981) GLR 599,CA; Joseph
Kolog-Awad Mumuni vs. Accra Brewery Ltd, C/A No.
95/2001, Court of Appeal, 27th February 2003
(unreported); Practice & Procedure In The Trial Courts &
Tribunals of Ghana by S.A Brobbey Vol. 1 (2001) Page
147. The overwhelming evidence on record supports the
view that the loan to the Society was a group loan for
which reason the Society is clothed with the requisite
capacity to bring an action against any defaulting
member-beneficiary to enforce payment to avoid the risk
of the Executives of the Society being jointly and
severally liable for the amount. The legal position as
rightly stated by this court in the case of Boateng and
Ors. vs Boateng (1987-88) 2 GLR 81, is that "where the
appellant contended that a judgment was against the
weight of evidence, he assumed the burden of showing
from the evidence that that was so." In the instant case
as in the Boateng case, the evidence on record as well
as submissions of counsel show that the findings of fact
made by the trial court were amply supported by the
evidence on record. There is therefore no basis for
interfering with the court's findings. I find no merit
whatsoever in this ground of appeal and the same is
dismissed. In the result the appeal is dismissed in its
entirety.
There will be costs of
three million (3 million) cedis for the respondent.
(SGD)
JUSTICE J. B. AKAMBA
I agree
JUSTICE R. C. OWUSU.
I also agree
JUSTICE ANIN-YEBOAH
COUNSEL
P. P. Kuenyehia & Co.
for Defendant/Appellant.
Mr. Dick Anyadi for
Plaintiff/Respondent. |
