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RULING
This application was filed on the 21st February, 2023 in the Registry of this Court on behalf of the Plaintiff praying the Honourable Court for an order for accounts to be gone into in respect of the loans advanced to the 1st Defendant and guaranteed by the other Defendants.
In this application, the Plaintiff contends that a grant of the application can substantially settle and dispose of the matter before the Court and render trial unnecessary. For this reason, the Plaintiff is of the opinion that an Independent Referee be appointed by the Court to go into accounts between the parties to ascertain the following:
1. How much of the loan amount was disbursed by the Plaintiff to the Defendants?
2. How much of the Loan amount has been paid by the Defendants to the Plaintiff?
3. Of the payments made, how much has gone into reduction of the principal amount and interest?
4. How much is outstanding, in terms of the principal amount?
5. How much is outstanding in terms of the interest on the loan, as well as the penal interest?
The Respondents in opposition to the application contend that the case should run its full course for the Plaintiff to address some pending matters to the Court. The Respondents in their Affidavit in opposition contend that the Plaintiff has not shown to the Court the designation of the facility in its books even if it were able to prove to the Court its capacity to benefit from facilities granted by the Energy Commercial Bank Limited to its customers. They further contend that the mere payment and receipt of the money do not dispose of the entirety of the case and that there are many issues beyond just the payment and receipt of money to be tried by the Court. Most importantly too, the case has not been for pre-trial as prescribed by rules.
ISSUES
The issue to be determined by this Court is as follows:
Whether or not the Court should make an order for accounts in the matter in order to settle same?
It is trite Law that the standard of proof in all civil actions, without exception, is proof by preponderance of probabilities, having regard to section 11(4) and 12 of the Evidence Act of 1975 (NRCD 323). In dealing with the principle that ‘’he who asserts must prove’’ the Supreme Court held in the case of Okudjeto Ablakwa (No.2) v. Attorney General and Obetsebi Lamptey (No.2) [2012] 2SCGLR 845 that:
“He who assets assume the onus of proof…. What this rule literally means is that. If a person goes to Court to make an allegat