GHANA HOME LOANS LTD VS SAMUEL LARBI HENAKU & ANOR

By a writ of summons, the plaintiff claims from the defendants:

a. The amount of $44,769.32 being the outstanding balance on the facility granted to the defendants.

b. Interest on the said amount from 20th February 2014 to the date of final payment at a rate of 22.5% per annum.

c. Costs occasioned by this action.

Attempts at settlement having broken down, the pretrial Judge set the following issues for trial:

Whether the defendant owes the plaintiff any outstanding balance on the facility granted by the plaintiff to the defendants.

Whether or not the plaintiff is entitled to its claim.

However, in the course of the hearing, issues arose regarding the letter of comfort, whether it was signed by the defendants, and whether it formed part of the mortgage agreement, as well as the interest charged by the plaintiff, and whether it was conscionable.

It is my opinion that the issues set down by the pretrial Judge are broad enough to capture the other issues that have come up. I also take on board counsel for the defendants' modification of issue 3 set by counsel for the plaintiff to read: "Whether or not the loan being dollar indexed, the interest rate of 14% and a penal rate of 22.5% are conscionable."

At all times material to this suit, it has not been in doubt that the plaintiff granted the defendants a facility of $44,500.00 at an interest rate of 14%. What appears to be in dispute is the default interest of 22.5%, which is triggered upon a default beyond 90 days.

It was this dispute that brought in issues about the comfort letter. This being a civil cause or matter, proof is on a preponderance of probabilities. See TAKORADI FLOUR MILLS V SAMIR FARIS [2005/2006] SCGLR 882. Consequently, the totality of the evidence adduced must be considered in assessing this preponderance or balance of probabilities, and the party in whose favor the scales tilt is the party whose version of events must be upheld by the court.

Plaintiff's exhibit CD2 is the said letter of comfort. Incidentally, it is dated the same day as the mortgage agreement, exhibit CD3. It is in reliance on CD2 that, upon a default, the penal interest rate of 22.5% is triggered. It is not in doubt that the defendants have both signed this exhibit. The first defendant admits this in cross-examination—that it has his signature—but he quickly adds that it was mistakenly signed. The first defendant is educated, and I guess the second defendant is educated as well. I wonder how the two of them co