MAKAF MICRO FINANCE v. RAHINATU M. MALIK & ANOR

JUDGMENT

This is indeed a small commercial claim .The amount sought to be recovered by the Plaintiff from the Defendant is the sum of GH¢ 12, 160.00 and interest thereon from 08/08/2013 to the date of final payment.

The Plaintiff's case is very simple and concise. It is alleged that the 1st Defendant contracted for a loan of GH¢ 4,000.00 on 08/05/2013 from the plaintiff Micro Finance institution at an interest rate of 12% per month to be repaid within three (3) months. The 2nd Defendant is alleged to have guaranteed the repayment of the said loan which remains unpaid to date. It is this non-payment that has led to the instant suit.

A few observations before I go into the merits of the case. From the record, the 2nd Defendant was not served with the Plaintiff's writ of summons and statement of claim even though a lawyer filed an appearance on behalf of the two Defendants on 06/01/15 at 10:00am. On the same day, but at 1:20pm, counsel for the Plaintiff conducted a search to ascertain whether both Defendants had been served with the writ of summons and statement of claim. The search result indicated that the 2nd Defendant had not been served. Counsel took no steps to ensure that the 2nd Defendant was duly served. Indeed, there is only one affidavit of service of the writ of summons on the 1st defendant on the court's docket. The 2nd Defendant never appeared in court. There is a real doubt as to whether the 2nd Defendant was ever served with the Plaintiff's writ of summons and statement of claim. I am inclined to believe that he was not served and the entry of appearance for both defendants might have been filed in error. as was held in the case of Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd Ors (1998/99) SCGLR 1 at page 2 ( holding 1): " A court has generally no jurisdiction to proceed against a party who has not been served...". The trial proceeded in respect of the 1st Defendant only.

In her statement of defence filed on 26/01/2015, the 1st Defendant did not deny taking the said loan from the Plaintiff to support her business but alleged that on or about June, 2013, thieves broke into her shop and stole all the items she had purchased with the loan. Prior to that, she alleged that she made various payments on the loan to the plaintiff. After notifying the plaintiff about the alleged theft, the 1st Defendant asserted that the Plaintiff's manager assured her that interest would be frozen to enable her raise funds from other sources to complete repayme