OKOMFO ANOKYE RURAL BANK LIMITED vs. MEDINA ZEBA BUKARI [2012]DLHC3881

Date	2012-11-14
Suit No.	SUIT NO.BFS/96/12
Citation No.	[2012]DLHC3881

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MR. KWASI BEMPAH FOR THE PLAINTIFF.

MR. KWAKU ANSAH FOR THE DEFENDANT.

[2012]DLHC3881
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													<main id="main" class="content" style="min-height: 60rem" >OKOMFO ANOKYE RURAL BANK
LIMITED<o:p></o:p>vs.<o:p></o:p>MEDINA ZEBA BUKARI<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO.BFS/96/12&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 14TH NOVEMBER, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. KWASI BEMPAH FOR THE
PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>This is an action for recovery of
the balance outstanding on a credit facility extended to the Defendant by the
Plaintiff Bank. Specifically, the amount endorsed on the writ of summons is GH¢17,456.94.
In addition, the Plaintiff is claiming interest that has accrued on this debit
balance from 19th April, 2012 to the date of final payment.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff’s case as captured in
its statement of claim is straightforward. On or about March 2011, an amount of
GH¢15,000.00 was advanced to the Defendant as an overdraft at an interest rate
of 32% per annum. This amount was to be repaid on or before 20th
May, 2012 but the Defendant defaulted, such that as of 19th April,
2012, her indebtedness stood at GHC 17,456.17 and this amount continues to
attract interest. <o:p></o:p><o:p>&nbsp;</o:p>By way of defence, the Defendant
conceded that the said overdraft facility was advanced to her. However, she
denied the quantum of the debit balance and pleaded that her failure to pay is
as a result of the down turn of her business but not a deliberate act.<o:p></o:p><o:p>&nbsp;</o:p>Three issues were set down for this
trial. These are:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Defendant owes the Plaintiff Bank GH¢17, 456.94?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Defendant’s indebtedness to the Bank is GH¢14, 356.00?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l1 level1 lfo1;
 tab-stops:list .5in">Whether
 the Plaintiff is entitled to interest on the sum owed by the Defendant?<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>As the case is in all civil suits,
the burden of proving the quantum of the Defendant’s indebtedness and whether
she is liable to pay interest rests on the Plaintiff. This is the statutory
duty placed upon the Bank by section 11 (4) of the Evidence Act, 1975, NRCD
323. The Plaintiff bank is required to lead evidence in court to make their
case more probable than not. Otherwise, the bank will lose. The test here is
proof by the balance of probabilities as spelt out in sections 12 (1) and (2)
of N.R.C.D. 323. Since the allegations made by the Plaintiff are capable of
positive proof, the bank is required to introduce sufficient evidence to avoid
a ruling against them on that issue. In the circumstances of this case, the
best positive proof will be the production of documents signed by the parties
relative to the transaction at stake. <o:p></o:p><o:p>&nbsp;</o:p>Indeed, when the Plaintiff’s
representative who described himself as the Recovery Manager of the bank
mounted the witness box, he tendered in evidence the Defendant’s request to increase
her overdraft facility (exhibit A), the appraisal form (exhibit B), the
overdraft approval form (exhibit C), the final demand letter written to the
Defendant (exhibit D) and a statement of accounts of the Defendant (exhibit E).
I will make reference to the details of these documents when necessary. <o:p></o:p><o:p>&nbsp;</o:p>Whilst in court, the Defendant
admitted taking an overdraft facility from the Plaintiff and also acknowledged
receipt of exhibits D and E.&nbsp; Her defence
was that she travelled with her husband who needed medical attention and on her
return; her Fan Milk business suffered a set back. According to the Defendant,
She instructed the Plaintiff to reduce her indebtedness by an amount of money
which was standing to her credit at the bank. And, after this had been done,
her debit balance in her view ought to have been GH¢14,354.44. She pleaded with
the court to reduce the interest and to be given up to January, 2013 to start
making payments.<o:p></o:p><o:p>&nbsp;</o:p>Having considered the evidence
adduced by both parties, I think the real issue between them is the quantum of
the defendant’s indebtedness. The Plaintiff’s representative in his evidence
–in- chief conceded that the defendant h</main>