EMBALINKS TELECOM SERVICES LTD. v. CAL BANK LTD.

ACKAH-YENSU (MS) JSC:-

INTRODUCTION

This appeal has arisen as a result of a dispute over the computation of the actual indebtedness of a customer to a bank. Nowadays, it is not uncommon for debtors to seek the intervention of the courts to avoid valid transactions entered into with creditors. The timing of such interventions, often during a default, is strategic with obvious motives. However, the courts cannot intervene unless there are vitiating circumstances like unconscionability, mistake, or fraud.

Indisputably, while borrowers are usually persons in great need and will often succumb to whatever terms of the agreement entered into with lenders, the law has carved a balancing mechanism to sustain the social significance of the bank-customer/borrower-lender relationship. There are several occasions where the courts have opened up agreements entered into between a bank and its customer and reviewed or modified same for being unconscionable. Other times, the courts find that the customer seeks to hoodwink the bank by adopting various strategies to dishonor payments on facilities they have taken benefit of. The instant appeal follows the conundrum confronting the banking industry following this trend.

In this judgment, we shall refer to the parties by the same designation as at the trial court, as Plaintiff and Defendant. The Plaintiff’s dissatisfaction with the banker-customer relationship that exists between her and the Defendant Bank compelled the initiation of the suit at the trial court. That suit, was for inter alia reliefs against the payment of alleged unconscionable interests/penal charges pertaining to financial facilities the Plaintiff took benefit of, from the Defendant Bank. The trial court upheld the claims of the Plaintiff and entered judgment in its favour. That judgment was, however, reversed on appeal by the Court of Appeal. Being aggrieved with the judgment of the Court of Appeal, the Plaintiff has appealed to this Court. Our duty, as the final appellate court is to review the evidence on record to ascertain which of the decisions is the right one, there being no concurrent findings by the two lower courts.

BACKGROUND FACTS

On the 28th of March 2016, the Plaintiff caused to be issued a writ of summons against the Defendant for the following reliefs:

“1.A declaration that the interest/penal charges clauses contained in the facility agreement between the parties is unconscionable.

2.An order setting aside the said interest/penal cla