BANK OF AFRICA v. AKUAFO ADAMFO MARKETING CO. LTD & ANOTHER
2018
HIGH COURT
GHANA
CORAM
- DOREEN G. BOAKYE-AGYEI (MRS.) J
Areas of Law
- Banking and Finance Law
- Contract Law
- Evidence Law
- Civil Procedure
- Corporate Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
A Ghanaian bank sued its Ghana-based borrower and the borrower’s Swiss parent-guarantor for repayment of an overdraft facility, contractual interest, and costs. The facility was enhanced to GHC 15 million in April 2015, backed by a corporate guarantee and assignment of receivables from Ghana Cocoa Board, with a 12-month tenure at 27.76% interest and a 6% penal rate. After expiry and going into excess, the applicable rate became 33.15%. The bank produced account statements showing debt of GHC 15,838,642.73 as of 19 November 2015 and GHC 19,079,543.36 as of 26 November 2016. Defendants claimed an oral promise to forbear enforcement pending an operational restructuring and later alleged full repayment after an internal reconciliation, but offered no documentary proof. Applying the Evidence Act’s burdens, cross-examination admissions, parol evidence rule, and a whole-agreement clause, the court found the bank’s evidence credible and unchallenged. It entered judgment for the bank for the principal, contractual pre-judgment interest, post-judgment interest under C.I. 52, and costs, holding the guarantor liable jointly and severally.
JUDGMENT
The Plaintiff, a banking institution, issued a Writ of Summons and Statement of Claim against the
Defendants on 5th April, 2016 seeking against them jointly and severally, the following reliefs:
1. Payment of the sum of GHC15,838,642.73 being the outstanding amount on the Facility granted to the 1st Defendant as at 19th November 2015;
2. Interest at a rate of 33.15% per annum on the principal amount from 19th November 2015 till the date of final payment; and
3. Legal costs incurred by the Plaintiff in instituting the action.
1st Defendant is a limited liability company incorporated under the laws of Ghana and a customer of the Plaintiff which is a company incorporated under the laws of Ghana and carrying on the business of banking.
2nd Defendant is a company incorporated under the Laws of Switzerland and a 100% shareholder of the 1st Defendant, according to the Pleadings. Following service of the Writ of Summons and Statement of Claim on them, Defendants Entered Appearance through their Lawyer on 15th April, 2016 and filed their Statement of Defence on 19th April, 2016. Defendants filed an Amended Statement of Defence on 23rd November, 2016 pursuant to leave granted by the Court to which the Plaintiff also filed a Reply to the Amended process on 5th December, 2016. Settlement failed at the Pre-trial Conference and the case was fixed for hearing.
The following issues were set down for trial:
Whether or not the Defendant owed the Plaintiff an amount of GHC15, 838,642.73 as at 19th November, 2015.
Whether or not the Plaintiff is entitled to the reliefs it claims.
Any other issue (s) arising from the pleadings.
The Burden of Persuasion in all civil cases is proof by a preponderance of the probabilities. This standard was affirmed by the Supreme Court in the case of Adwubeng v Domfeh (1996-97) SCGLR 660. The burden is defined at section 10 of the Evidence Act 1972, Act 323 as follows:
(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.
(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or nonexistence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt” Proof by a “Preponderance of the Probabilities” according to section 12(2) means: “...