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COMMERCIAL  COURT CASES

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA (COMMERCIAL DIVISION) HELD IN ACCRA ON FRIDAY THE 1^ST DAY OF APRIL 2011 BEFORE HIS LORDSHIP MR. I. O. TANKO AMADU J.

                                                                                                SUIT No. BFS/167/2010

            UT. FINANCIAL SERVICES LTD.                       -                       PLAINTIFF

                        VRS.

1.         DORIS BRUCE                                             

2.         D. G. K. ATTIPOE                                       -                       DEFENDANTS

3.         JULIANA OPPONG

4.         COMFORT BORKOR BORQUAYE

JUDGMENT

1.         This suit came up for trial on 23/3/2011 upon due service of Hearing Notices to all parties through their lawyers.

2.         When the suit was called, Plaintiff was present as it was duly           represented. All Defendants were absent but their lawyer was             present.

3.         The court proceeded to take the evidence of the Plaintiff’s     witness.

4.         She  tendered Exhibit ‘A’ the loan agreement between Plaintiff and            1^st        Defendant which was duly executed and which       includes particulars             of security provided by the Defendants residential properties at Gbawe,     Nungua and Kokomlemle provided by the 2^nd to          4^th Defendants and a    Toyota Previa and Nissan Serena in the possession of the 1^st Defendant.

5.         Exhibit ‘B’ tendered by the Plaintiff’s witness is a surety’s mortgage            executed between the Plaintiff and 2^nd Defendant in which the            property of the 2^nd Defendant a residential building at Kokomlemle             aforesaid was used to secure the facility extended by Plaintiff to 1^st             Defendant.

6.         Exhibit ‘C’ tendered by the Plaintiff’s witness with respect to a          property situate at Gbawe North Accra belonging to the 3^rd   Defendant     which the 3^rd Defendant had voluntarily made available as security to             secure the facility     Plaintiff and 1^st Defendant had agreed that 1^st Defendant will take and         Plaintiff will give.

7.         Exhibit ‘D’ tendered by the Plaintiff’s witness is also a surety’s         mortgage with respect to the 4^th Defendant’s property at Nungua         which             the 4^th Defendant voluntarily provided in order to secure the facility 1^st           Defendant had agreed to take from the   Plaintiff while           Exhibit ‘E’      is documentary evidence of the further use of the 1^st Defendant’s Nissan     Serena GR 5658 T valued at GH¢4,000.00 and Toyota Previa GT 2873X        valued at GH¢14,000 both of which were used by 1^st Defendant as            additional security but which vehicles remained in the possession of the 1^st Defendant.

8.         According to the Plaintiff’s witness 1^st Defendant defaulted on the terms of repayment of the facility it took from the Plaintiff together with                 accumulated interest per the loan agreement giving cause to the default notice served on 1^st Defendant on the principal loan sum of             GH¢270,176.00 disbursed in favour of the 1^st Defendant       on29/1/2008 per terms of  agreement contained in Exhibit ‘A’.

9.         Plaintiff’s evidence is that as of the date of issuance of the writ 1^st   Defendant was indebted to Plaintiff in the sum of GH¢620,937.55    with     interest still counting resulting into a total indebtedness of         GH¢1,297,074.51 due and owing to        Plaintiff by 28/2/2011 as per          Exhibit ‘G’ tendered by Plaintiff.

10.       In further testimony, the Plaintiff’s witness tendered Exhibit ‘H’ a     certificate of valuation of the Toyota Previa used by the 1^st        Defendant     as additional security for the facility she took from Plaintiff on the          face    of Exhibit ‘H’ which remained in the 1^st Defendant’s possession even after             using same as security with          a market value of     GH¢78,000.00 at the           time it was made             Exhibit ‘H’ does not contain           any particulars as    to forced sale value.

11.       During cross examination by the Defendants’ counsel,          Plaintiff’s witness    admitted that upon the voluntary surrender of the said vehicle by     the      1^st Defendant to Plaintiff, same was             sold at a price of GH¢7,500.00 to defray 1^st Defendant’s        indebtedness verified by the transaction    dated 27/1/2010      contained in Exhibit ‘G’.

12.       Counsel for the Defendants challenged this evidence suggesting to          Plaintiff’s witness that the vehicle ought to have   yielded the sum of   GH¢14,000.00 the value contained in schedule 11 of Exhibit ‘A’      executed by the 1^st Defendant on 29/1/2008.

13.       I cannot but agree with Defendant’s counsel. There being no           documentary evidence of the sale price of the said vehicle the oral       testimony by the Plaintiff’s witness is too convenient and self serving           and I shall attach no weight to same. In preference I will accept the             documented value of GH¢14,000.00 agreed by            the parties themselves        as per Exhibit ‘A’ in the absence of any other documentary evidence             to the contrary.

14.       I find therefore that the credit transaction posted on the 1^st     Defendant’s Statement of Account No. 005547 on 27/1/2010 as contained in          Exhibit ‘G’ ought to be GH¢14,000.00 and not GH¢7,500.00 as       testified.

15.       Safe this issue raised by Defendants’ counsel under cross   examination, Plaintiff’s evidence stood essentially unchallenged,   uncontradicted and uncontroverted. I have valuated same in             accordance   with the prescribed statutory          standards provided under the       Evidence       Act NRCD 323. In my    view Plaintiff’s testimony on the issues for        determination is       admissible, credible and relevant in the           determination of the            issues set down for trial.

16.       When the Plaintiff closed its case on the evidence of its only            witness,         Defendants’ counsel proceeded to cross examine Plaintiff’s witness         and     save the challenge to the price Plaintiff          said it had sold 1^st    Defendant’s Toyota Previa an issue I have        earlier resolved in 1^st             Defendant’s favour no other questions were asked by Defendants’             counsel to contradict or impeach the testimony of Plaintiff’s witness.     On the authority of MARTEY & ORS. VRS. BOTWE [1989 – 90] GLR      179 I find that            Defendants have admitted Plaintiff’s evidence on the            principle of implied admission for failure to cross examine.

17.       When the suit was adjourned until 24/3/2011 for the Defendants to            attend court and testify, neither counsel for the       Defendants who was in     court when the suit was adjourned nor the Defendants he represents             were in court. The suit was adjourned for judgment having construed             Defendants’ conduct and of their counsel as not having any further           interest in contesting Plaintiff’s case. Hearing Notices were ordered to          be issued for service on Defendants’ counsel. The record shows that    Hearing Notice has been duly issued and served.

18.       The law is that where a person as in the case of the 2^nd to 4^th            Defendants herein personally guarantee the liability of a third party       in this case 1^st Defendant herein by entering into a contract of             guarantee or surety, a distinct and separate contract from that of      the      principal debtor is thereby created        between the guarantor and           the      creditor.

19.       The contract of guarantee thereby created can be enforced   against the    guarantor directly or independently without the             necessity of joining the      principal debtor in the proceedings to enforce same though it is prudent for a complete and effectual adjudication to join them in     one             actionas the instant Plaintiff had done. In Chitty on Contracts 24^th   Edition Vol. 2 paragraph 4831 the law is stated thus:

                        “.................prima facie the surety may be proceeded                                                      against without first proceeding against the principal                                                       debtor be MOSCHI VRS. LEP AIR SERVICE LTD. [1973]                                                             AC 331 at 348 and ESSO PET CO. LTD. VRS. ALASTON                                                       BRIDGE PROPERTIES [1975] WLR 1474”

20.       On the totality of the evidence before me and the uncontroverted    documentary evidence of suretyship provided by the 2^nd to 4^th         Defendants as guarantors or sureties of the transaction between         Plaintiff and 1^st Defendant herein, I         find     for the Plaintiff and hereby            enter judgment in Plaintiff’s favour        as follows:

            (i).        Let the Plaintiff be entitled to the recovery of the sum of                                             the principal sum of GH¢270,176.00 with interest                                                   thereon calculated at the contract rate in accordance                                                            with Exhibit ‘A’.

            (ii).       There shall be credited to 1^st Defendant’s account the            sum of                                    GH¢14,000.00 with effect from 27/1/2010 and   same shall be                                   taken into account in calculating the 1^st Defendant’s outstanding                                   indebtedness to Plaintiff till date of final payment.

            (iii).      Alternatively, Plaintiff is at liberty to conduct a judicial sale of the                             properties belonging to the 2^nd, 3^rd and 4^th     Defendants situate at                                  Kokomlemle, Gbawe and Nungua respectively same being subject                                   matter of mortgages entered into between the Plaintiff and the 2^nd                              to 4^th   Defendants.

            (iv).      The costs of this action is assessed at GH¢1,000.00 against each of                       the 1^st to 4^th Defendants.

                                                                                                         (SGD.)

                                                                                    JUSTICE I. O. TANKO AMADU

                                                                                    JUSTICE OF THE HIGH COURT

Christopher Archer Esq.

(For Plaintiff)

B. B. Bakattah Esq.

(For Defendants)