March 8, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Justice Marful-Sau, JSC, authored the Supreme Courts lead judgment in an appeal arising from an overdraft arrangement between the appellant and respondent, secured by the respondents property and operated through the appellants Asamok Enterprise account at Stanbic Bank. The parties intended shared use of GHC 50,000 with pro-rata interest. After the respondent paid monthly interest for years and sought accounting, he stopped payments in September 2012, having paid over GHC 80,000. The appellant sued for GHC 40,000 allegedly outstanding and 3.5% monthly interest based on a claimed new loan from Express Savings and Loans. On re-evaluating the record, including bank statements and DW3s expert report from BNA Chartered Accountants, the Supreme Court found no evidence of a GHC 40,000 debit or of any GHC 40,000 payment into the account, concluded the appellant failed to meet his evidential burden under the Evidence Act, and affirmed the Court of Appeals dismissal while upholding return of the respondents lease.
MARFUL-SAU, JSC: -
The appellant in this appeal is urging us to set aside the decision of the Court of Appeal, sitting at Kumasi on 19th July 2016, which reversed the decision of the trial High Court, Kumasi. The trial High Court had entered judgment for the appellant herein on the 22nd of December, 2014. From the facts of the case, the parties agreed that appellant herein, would obtain an overdraft facility from Stanbic Bank for their common use, using the respondent’s property as security. The arrangement was that the parties will both use the facility of GHC 50,000.00 and share the interest payment on a pro rata basis depending on how much each had out of the GHC 50,000.00. The overdraft facility was granted in December 2007 and an account in the name of appellant’s business “Asamok Enterprise’’ was opened for the disbursement of the overdraft.
The appellant initially gave the respondent GHC 10,000.00 in 2007 and later the amount was increased to GHC 20,000.00. As agreed by the parties by 2009, the respondent had received a total of GHC 50,000.00 from the appellant. The appellant who took the overdraft, informed the respondent that the interest payable on the facility was 33.7% per annum. The respondent was thus to pay GHC 300 per month as interest on every GHC10,000.00. Accordingly, at GHC 50,000.00, the respondent was paying interest of GHC 1,500.00 per month. In 2010, the respondent requested the appellant to convert the overdraft into a loan to enable him settle the indebtedness gradually, but the appellant rather renewed the overdraft and took GHC 1,000.00 from the respondent.
The respondent, however, faithfully paid the interest as indicated to him by the appellant on the overdraft until 2010, when he requested the appellant to render account on the facility and show documentary proof of the interest rate he had paid over the years. The appellant refused to account and also failed to provide the evidence of the interest rate. In April 2012, the appellant put pressure on the respondent to pay GHC 10,000.00 into the overdraft account in addition to the monthly interest payments. In September 2012, the respondent stopped further payment of interest, because he believed the interest charged by the Bank on the overdraft could not have been fixed from 2007 to 2012. As at the time, respondent had paid interest in excess of GHC 80,000.00 into the overdraft account.
The respondent’s decision to stop paying further monies into the overdraft account caus