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JUDGMENT:
The Plaintiff claims jointly and
severally against the Defendants
as follows:
“(i) the refund of the
outstanding debt of GH¢14,762.26
as at the end of December, 2008
from the initial facility of GH¢5,000
granted to 1st
Defendant on 18th
December, 2006 and guaranteed by
2nd Defendant at the
interest rate of H.F.C. Base
Rate plus 6.5% for a three
months period to enable 1st
Defendant undertake contract
works for E.C.G.
(ii) Interest therein at agreed
rate from 1st
December 2008 to date of final
payment.
(iii) cost”
It is the Plaintiff’s case that
at the request of 1st
Defendant, 1st
Defendant was granted a loan
facility of GH¢5,000 on 18TH
December 2006 for a period of
three months at a variable
interest rate of H.F.C Base rate
plus 6.5%, and secured with a
Deed of Guarantee dated 21st
December, 2006. At the request
of the parties, 2nd
Defendant executed a personal
guarantee on behalf of 1st
Defendant which made him liable
upon default by 1st
Defendant. It was a further
condition that upon expiration
of the facility any portion of
the loan that remained unpaid
should attract a penal rate of
10% p.a. It is Plaintiff’s
further case that since the
expiration of the facility,
Defendants had failed to
liquidate same despite numerous
demand notices to them by
Plaintiff. Plaintiff has thus
sued Defendants for the reliefs
endorsed on the writ of summons.
Defendants, in their Statement
of Defence, averred that 1st
Defendant was unable to pay back
the loan because the Electricity
Corporation of Ghana (ECG)
restructured their mode of
payment and so 1st
Defendant’s contract with ECG
was suspended because of its
inability to obtain enough funds
to execute the existing
contract. Furthermore that job
Defendants were to execute at
Hohoe in the Volta Region was
suspended because the Defendants
could not obtain financial
assistance to pre-finance the
project. Defendants averred
further that the only way they
could repay the debt was if
Plaintiff provided them with
further credit facility.
The evidence adduced on behalf
of Plaintiff by Elizabeth
Nyarko, Branch Manager, Legon
Branch of Plaintiff Bank (P.W.1)
was that Plaintiff advanced a
loan facility of ¢50,000,000.00
(GH¢5,000.00) to 1st
Defendant for which facility 2nd
Defendant guaranteed repayment
of. P.W.1 tendered in evidence a
copy of the “Bank Facility
Letter” (Exhibit “A”).
Despite the fact that Defendants
filed a Statement of Defence
they did not give any evidence
at the trial. By the provisions
of section
21 (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.
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 be
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.
Not only did the Defendants fail
to lead evidence, they also did
not cross-examine P.W.1 after
P.W.1 gave his evidence in
chief. 2nd Defendant
was in Court but did not have
legal representation.
Nonetheless he was given an
opportunity to cross-examine but
said he did not have any
questions to ask. 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 that:
“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 needs
not call further evidence of
that fact.”
This principle was further
enunciated by Brobbey J (as he
then was) in the case of
Hammond v. Amuah [1991] 1 GLR 89
at 91
as follows:
“The law is quite settled that
where a party makes an averment
and that averment is not denied
no issue is joined and no
evidence need be led on that
averment. Similarly, when a
party has given evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence on
that fact. See Fori v Ayirebi
(Supra). Indeed it was held in
the case of Quargraine v. Adams
[1981] GLR 599, CA that where a
party made an averment and his
opponent fails to cross-examine
on it, the opponent will be
deemed to have acknowledged sub
silentio, that averment by
failure to cross-examine.”
Similarly, in
Takoradi Flour Mills v. Samir
Faris [2005-2006] SCGLR 882,
Ansah JSC referred to the case
of
Tutu v Gogo, Civil Appeal No.
25/67, dated 28th
April 1969, Court of
Appeal unreported; digested in
1969 CC 76,
where Ollenu JA said that:
“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”.
In my opinion, the Plaintiff
herein has adduced sufficient
evidence to discharge the burden
of proof on it, and P.W.1’s
evidence stands unchallenged.
P.W.1 has adduced documentary
evidence to support Plaintiff’s
assertions with regard to the
loan facility and the terms and
conditions upon which it was
granted. Elizabeth Nyarko
(P.W.1) led cogent and credible
evidence to prove Plaintiff’s
case, and I believe her. I will
therefore give judgment in
favour of the Plaintiff on the
four corners of Ms Nyarko’s
evidence.
In conclusion, I will hold that
the Defendants are jointly and
severally liable to refund to
Plaintiff the sum of GH¢14,762.26
together with interest at the
agreed rate of H.F.C. Base Rate
plus 6.5% from1st
December 2008 to date of final
payment.
Costs assessed at GH¢2,000.00
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
FOSTER GBONEY -
PLAINTIFF
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