|
JUDGMENT:
Gold Coast Securities, Plaintiff
herein, is claiming from Feredy
Company Limited (1st
Defendant) and three of its
Shareholders/Directors who
guaranteed an investment
facility granted to the 1st
Defendant, the following
reliefs:
a.
Recovery of the sum of
GH¢180,000
b.
Interest of 30% per annum on
the said amount from 30th
April 2009 till date of final
judgment.
c.
Costs.
AND/0R IN THE ALTERNATIVE,
d.
Judicial sale of the landed
property registered in the name
of WILLIAM NTIM, the 3rd
Defendant herein, with
registration number TDC 0724,
Volume T9 and Folio 73 and Plan
No.TDC 69/14/MKT/43, situate at
Community 14, Sakumono.
Plaintiff’s case is that at the
request of the 1st
Defendant made on 4th
April, 2008, Plaintiff granted
an investment facility of
GH¢3,000,000 on draw-down basis
to the 1st Defendant
for it to meet its short term
working capital requirements.
The Term Sheet and Investment
Agreement signed by the parties
herein was tendered in evidence
by Raphael Owusu Ansah Karikari
(P.W.1) as Exhibit “B”. The
Directors Guarantee signed by 2nd,
3rd and 4th
Defendants was also tendered in
evidence as Exhibit “C”. The
facility was secured with a
Mortgage over a landed property
registered in the name of
William Ntim (4th
Defendant herein), with
registration number TDDC 0724,
Volume T9 and folio 73 and plan
No. TDC 693/14/MKT/43, situate
at Community 14, Sakumono
(Exhibit “E”).
It is Plaintiff’s further case
that the facility was disbursed
in tranches. GH¢38,000 was
disbursed to Defendant on
23/05/2008; and GH¢70,000 on
19/06/2008. A further amount of
GH¢31,000 was used by the
Plaintiff in preparing the
documentation with regard to the
Deed of Mortgage. Receipts for
this were tendered in evidence
as Exhibits H, H1, H2, H3 and
H4. P.W.1 also testified that
Plaintiff, per the letter
tendered in evidence as Exhibits
“J1”, informed 1st
Defendant Company about a change
in the investment rate as a
result of the Company’s default
in repaying the facility. 1st
Defendant responded (Exhibit
“J”) and explained why it had
defaulted and promised to work
towards the liquidation of their
debt. P.W.1 also testified that
Defendant had only repaid
GH¢10,000 of the facility.
The Defendants filed a Statement
of Defence but failed to appear
in Court to lead evidence even
though, they were given the
opportunity to do so. The Court
adjourned after Owusu Ansah
Karikari (P.W.1) closed his
evidence in chief, and the
Defendants were served with
hearing notice to attend Court.
The Defendants were thus deemed
to have waived their right to
cross-examine the Plaintiff’s
representative and to defend the
suit. This position was
espoused in the case of
Ankumah v City Investment Co.
Ltd [2007-2008] SCGLR 1064
The Supreme Court, per Brobbey
JSC, in the case of In Re:
Ashalley Botwe Lands; Adjetey
Agbosu & Ors v. Kotey & Ors
[2003-2004] SCGLR 420,
reiterated the position of the
law that it is the duty of the
plaintiff who took the defendant
to court, to prove what he
claimed he is entitled to from
the defendant. However, if the
court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence, the defendant must
realise that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to made
in his favour.
The Supreme Court pointed out
that the logical sequel to this
is that if he leads no such
facts or evidence, the court
will be left with no choice but
to evaluate the entire case on
the basis of the evidence before
the court, which may turn out to
be only the evidence of the
plaintiff. If the court chooses
to believe the only evidence on
record, the plaintiff may win
and the defendant may lose.
As stated above, the Defendants
herein also did not
cross-examine the Plaintiff’s
representative. There is
abundant case law on the effect
of not cross-examining a
witness. In the case of Fori
v. Ayirebi [1966] GLR 627 SC at
647, it was held as follows:
“The law is that when a party
made an averment, and that
averment is not denied, no issue
is joined on that averment, and
no evidence need be led. Again,
when a party gives evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence of
that fact.”
The principle was further
enunciated by Ansah JSC in
Takoradi Flour Mills v. Samir
Faris [2005 -2006] SCGLR 882
when he referred to the case of
Tutu v. Gogo, Civil Appeal
No. 25/07, dated 28th
April 1969, Court of Appeal
unreported; digested in 1969
CC76 where Ollenu JA stated
thus:
“In law, where evidence is led
by a party and that evidence is
not challenged by his opponent
in cross-examination and the
opponent did not tender evidence
to the contrary, the facts
deposed to in the evidence are
deemed to have been admitted by
the party against whom it is
led, and must be accepted by the
court.”
By Section 21 (a) &
(b) (i) of the Evidence Decree,
a judge may find that the
evidence of the party with the
right to begin has so
effectively established the
basic facts that a reasonable
mind must necessarily conclude
that their existence is more
probable than their
non-existence. Where this
situation arises, the judge has
to find that the resulting
presumed facts have been
established; that is, a prima
facie case has been
established in favour of the
plaintiff or the person on whom
lies the burden of persuasion,
unless and until the party
against whom the presumption
operates proves the
non-existence of the presumed
fact.
In my opinion, Owusu Ansah
Karikari led credible and cogent
evidence to prove Plaintiff’s
case, and I believe him. I will
therefore give judgment in
favour of the Plaintiff on the
four corners of Owusu Ansah
Karikari’s evidence. I will
accordingly hold that Plaintiff
is entitled to the reliefs it is
seeking and order that Plaintiff
recover from Defendants the sum
of GH¢180,000 together with
interest of 30% per annum from
30th April 2009 till
date of final payment.
Costs assessed at GH¢2,000.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
FREDERICK BOAMAH -
PLAINTIFF
|
