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JUDGMENT:
The Plaintiff herein has sued
the Defendant for:
“(a) The sum of US$187,932.73
being principal loan balance
and interest accrued as at 5th
March 2009
(b) Interest on the said
loan balance of US$187,932.73
from 5th March 2009
to date of final payment.
(c) An amount of GH¢3,043.92
being loan facility charges
which Defendant has failed to
pay to the Plaintiff.
(d) Cost.”
Per its pleadings, the
Plaintiff’s case is that
Defendant, a customer at the
Plaintiff’s Tema Fishing Harbour
Branch, lodged a cheque numbered
50055383 and endorsed with the
amount of US$169,625.65 into his
USD Forex Account No.
0040404670017, with the
Plaintiff Bank. The said cheque
was sent for collection through
Citibank, its correspondent bank
in New York, in the normal
course of its business as a
bank. The Citibank credited the
Plaintiff’s account with the
amount of US$169,302.65, and
Plaintiff subsequently credited
Defendant’s USD account with the
said sum.
However, after the Defendant had
withdrawn all of the money
covered by the said cheque,
Plaintiff received a letter
dated 16th April 2008
from Citibank indicating that
the cheque No. 50055383 which
had been credited to the
Plaintiff’s account with
Citibank had been fraudulently
altered. Furthermore, Citibank
had made contact with the
rightful owner who had
established their satisfaction
that the cheque had been
fraudulently altered and that he
had not issued any cheque for
payment in favour of the
Defendant. The Plaintiff, after
informing the Defendant,
consequently debited the
Defendant’s Forex Account with
the amount of US$169,625.65.
The Defendant admitted that it
had come to his knowledge that
the cheque was indeed altered
and that he had lodged a
complaint with the Police who
were investigating the matter.
Defendant in his letter dated 29th
April 2008 formally accepted
liability for the payment of the
said amount and requested the
Bank to convert his overdrawn
Forex Account into a loan
facility to be repaid in monthly
instalments for a period of
fifteen (15) months, commencing
630th June 2008.
Consequently Plaintiff in a
letter dated 30th
June 2008 offered Defendant a
loan facility at an interest
rate of 12% for a period of
seventeen (17) months as
contained in the Converted Loan
Facility Agreement dated 1st
September 2008. The effective
date of the conversion was 14th
April 2008.
The loan facility was secured
with a parcel of land with
building thereon situated at
Dome, Accra being the property
of a certain Adjei Tuffuor, as
contained in the Deed of
Mortgage dated 4th
July 2008. However, when the
Land Title Certificate was
presented to the Land Title
Registry, the Plaintiff was
informed that the said
certificate was not genuine and
that it did not emanate from the
Registry’s office and therefore
could not be registered in
favour of the Plaintiff and
referred the matter to the
Police for their necessary
action.
It is Plaintiff’s further claim
that the Defendant defaulted in
making repayments as agreed and
requested for an extension of
the commencement date for
repaying per letter dated 11th
September 2008. Plaintiff
granted the said request and
extended the repayment
commencement date from 15th
August to 15th
November, 2008. Yet in spite of
numerous concessions granted the
Defendant he has failed or
refused to pay off the facility.
Plaintiff, per its amended
statement of claim, asserted
that “Defendant is estopped from
relying on the same facts which
have been deposed of against his
company in Suit No. BFS131/2009
when the Defendant herein being
the sole shareholder gave
evidence on behalf of said
company being ITS alter ego.”
The said suit is entitled
“Merchant Bank Ghana Limited v
Pemson Ventures Limited”.
The Defendant denies the
Plaintiff’s claim and contends
that the Defendant’s
relationship with the Plaintiff
in this matter was through
Account No. 0040404670017 which
was at all material times a
company account held by a
corporate legal entity Pemson
Ventures Limited. Furthermore,
letters, and offers were made
“without prejudice” and
therefore Plaintiff is estopped
from relying on same as
admissions made by the
Defendant’s company. Defendant
contends further that his
company secured a loan from a
group of people (a 3rd
party) based at the Tema Fishing
Harbour, who are in the business
of advancing credit to needy
companies. Defendant was given
a foreign cheque by the said
party which they paid into their
account number 0040404670017.
When Defendant’s representative
was notified that the cheque had
cleared, Defendant issued a
series of cheques against the
“cleared” amount. Defendant was
however compelled to return the
amount of US$169,265.65 to the 3rd
party agents less bank handling
charges owing to the high
interest rate of $20,000 “per
mensem” levied on the said
amount by the said 3rd
Party agents.
Defendant denies any liability
or indebtedness to the
Plaintiff. Defendant contends
that it relied on “the
Plaintiff’s paid professional
advice to his detriment both to
his personal freedom and
financial cost and thus is
entitled to damages for wrongful
paid professional advice.”
Furthermore, the 3rd
Party agents who issued the dud
cheques have since been arrested
and are currently facing
criminal trial at the Circuit
Court, Accra.
The Plaintiff adduced evidence
through its representative,
Theodore Bob Senaya (Head of the
Risk Management Department), who
gave evidence in line with
Plaintiff’s pleadings. He
denied the Defendant’s assertion
that the Bank offered him
professional advice which he
paid for. He said that the Bank
did not offer any professional
advice to the Defendant. He also
said that it was the normal
practice for the Bank to charge
a commission for clearing of the
cheque, and thus Defendant paid
a commission of US$848.00. Mr.
Senaya further testified that
the Plaintiff Bank was not aware
of Plaintiff’s claim that he had
been defrauded; nonetheless it
was the Plaintiff’s position
that the Defendant’s dealings
with any third party had nothing
to do with the Bank.
Mr. Senaya tendered in evidence,
amongst others, the following
documents:
1. Statement of Account No
004040467 in the name of Prempeh
Wilson Edward Mr., for the
period 1st December
2007 to 19 July 2011 (Exhibit
“A”).
2. Photocopy of cheque
issued to the order of Edward
Prempeh by R.R Donnelly in the
sum of USD169,625.65 (Exhibit
“B”).
3. Photocopy of Plaintiff
Bank Cheque Deposit Slip for the
above mentioned cheque (Exhibit
“C”).
4. Letter dated June 3,
2008 from Citibank informing
Plaintiff Bank about the altered
cheque (Exhibit “D”).
5. Heads of Agreement
Between Edward Wilson Prempeh
and Prudential Bank Limited
dated 1st Day of
September 2008 (Exhibit “E”)
6. Receipt (Yellow Card),
and other documents
acknowledging receipt of
application for Land Title
Certificate (Exhibit “F”, “F1”
and “F2”).
7. Defendant’s Principal
Loan Account (Exhibit “G”).
Mr Senaya tendered in evidence
Exhibit “A”, the Plaintiff
Bank’s statement of Defendant
confirming that the account into
which the said cheque was paid
was Defendant’s own account no.
0040404670017, and that same was
not in the name of Pemson
Ventures Limited which Plaintiff
maintains is unknown to the
Bank.
The Defendant, together with his
Counsel, was in Court on the 23rd
of May, 2011, when the trial was
supposed to have commenced.
Counsel for the Plaintiff and
the Defendant agreed to fix
“firm” dates for hearing for the
20th, 21st
and 22nd of July,
2011. But neither the Defendant
nor his Counsel appeared in
Court on the 20th of
June, 2011. The trial commenced
nonetheless, and the Plaintiff
closed its case. The matter was
adjourned to the 21st
of July, 2011 to give the
Defendant an opportunity to
cross-examine the Plaintiff’s
witness, and to defend his
claim. Again, neither the
Defendant nor his Counsel
appeared in Court, and
consequently the closed was
closed.
The position of the law is that
after a plaintiff has adduced
sufficient evidence to discharge
the burden on it, the burden
shifts to the defendant to rebut
the plaintiff’s case by leading
evidence. The Defendant
therefore had a duty to lead
evidence to prove its
assertions. It is trite learning
that pleadings are not
substitute for evidence. The
Defendant herein also had a duty
to cross-examine Mr. Senaya.
There is abundant case law on
the effect of a party not
cross-examining a witness. The
principle was enunciated by
Brobbey J (as he then was) in
the case of
Hammond v. Amuah [1991]
1 GLR 89 at pg 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 to 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. Aikins [1981] 1
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"
In the case of
Takoradi Flour Mills v. Samir
Faris [2005-06] 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 CC76 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”.
As stated above, the Defendant
did not lead any evidence at
all. The position of the law
was succinctly put in the case
of In Re Krah (decd);
Yankyeraah and Others v.
Osei-Tutu and Anor [1989-90] 1
GLR 638 at 639 SC as
follows:
“Having failed to put their case
across, the Defendants must be
presumed to have accepted the
case put forward by the
plaintiff unless an amendment
was made and evidence led to
support the amendment.”
In the opinion of the Court, the
Defendant having accepted
liability and having agreed to
pay off the indebtedness, and
indeed having made some payments
towards the discharge of his
indebtedness, cannot resile from
the agreement. He is bound by
his own words and deeds.
In my view, Mr. Senaya led
credible and cogent evidence to
prove Plaintiff’s case that the
Defendant was in fact indebted
to it, and I believe him. I
will therefore give judgment in
favour of the Plaintiff on the
four corners of Mr. Senaya’s
evidence. I will accordingly
hold that Plaintiff is entitled
to recover from the Defendant
the sum of US$187,132.73 or its
cedi equivalent, together with
interest at the prevailing bank
rate, from 5th March
2009 until date of final
payment. The Plaintiff is also
entitled to recover an amount of
GH¢3,043.92 being loan facility
charges which Defendant has
failed to pay to the Plaintiff.
Costs of GH¢3,000 awarded
against Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
YAW OPPONG FOR PLAINTIFF
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