STANBIC BANK GHANA LIMITED vs. OSEI YAW ANNING [2012]DLHC3891

Date	2012-06-20
Suit No.	SUIT NO.BFS/29/12
Citation No.	[2012]DLHC3891

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

KWASI BAFFOE INTSIFUL FOR ESINAM WUIAH FOR PLAINTIFF.

ALEXANDER OWORAE FOR DEFENDANT.

[2012]DLHC3891
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													<main id="main" class="content" style="min-height: 60rem" >STANBIC BANK GHANA
LIMITED<o:p></o:p>vs.<o:p></o:p>OSEI YAW ANNING<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/29/12&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; &nbsp; &nbsp; &nbsp;DATE: 20TH JUNE, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWASI BAFFOE INTSIFUL FOR
ESINAM WUIAH FOR 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;
padding:0in 0in 1.0pt 0in">

</div>The Plaintiff is a Banking
Institution and the Defendant has been described as a registered general
merchant who deals mainly in Petroleum products. The parties are in court
because of the Defendant’s indebtedness to the Plaintiff arising out of two
credit facilities granted to the Defendant on August 21, 2009.<o:p></o:p><o:p>&nbsp;</o:p>To sum up the Plaintiff’s case as
captured in his statement of claim filed on 4/11/11, it extended a Loan and
Over Draft facilities to the tune of GH¢150,000.00 and GH¢ 250,000.00
respectively to the Defendant on August 21, 2009 upon terms. The Defendant
accepted the terms of these credit facilities but defaulted in repayment. On
March 24, 2010, the overdraft facility was renewed at the request of the
Defendant. His overdrawn position of GH¢95,000 was converted and consolidated
with the existing loan to an amount of GH¢245,000.00. His total indebtedness
then stood at GH¢495,500.00. It was the Plaintiff’s case that the parties
agreed on several repayment terms but the Defendant failed to abide by the
terms of payment and continued to default resulting in a debit balance of
GH¢336,186.55 and GH¢316,325.65 on the Loan and overdraft facilities
respectively. It is these amounts together with interest that the Plaintiff is
claiming in this court.<o:p></o:p><o:p>&nbsp;</o:p>By his statement of defence filed on
January 2, 2012, the Defendant did not dispute taking the two credit facilities
but asserted that the balance on the overdraft facility after the same had been
restructured at his request stood at GH¢250,000.00. He did <o:p></o:p>&nbsp;the various re-payment plans given to him over
the period in issue. His main contention was that he held a discussion with the
Managing Director of the Plaintiff Bank who agreed to reduce his indebtedness
to Three Hundred and fifty Thousand Ghana Cedis.<o:p></o:p><o:p>&nbsp;</o:p>The issues set down for trial 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:l2 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the parties agreed that the whole debt inclusive of interest
 totaled GH¢350,000.00?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l2 level1 lfo1;
 tab-stops:list .5in">Whether
 the Plaintiff is entitled to the sums endorsed on the writ?<o:p></o:p></li>
</ol>In all civil matters, a
party who makes any positive assertion, which is denied, bears the onus of
proof. The required standard of proof is by the preponderance of probabilities
as spelt out under sections 11(4) and 12 of the Evidence Act, 1975, N.R.C.D.
323. Each party bears the burden of persuasion as to each fact the existence or
non- existence of which is essential to the claim or defence he is asserting,
until the burden is shifted or as otherwise provided by law.<o:p></o:p><o:p>&nbsp;</o:p>Thus, in the case of
Continental Plastics v IMC Industries Technik GMBH (2009) SCGLR 298, the court
explained what is meant by proof in law by relying on the case of Zambrama v
Segbedzi (1991) 2 GLR 221 at page 246, per Kpegah JA (as he then was), which
modified the principle as laid down in Majolagbi v Larbi (1959), GLR 190. At
page 306, the court quoted with approval the following statement of Kpegah JA
in the Zambrama case referred to, supra:<o:p></o:p><o:p>&nbsp;</o:p>“I will therefore venture to state
the position to be: a person who makes an averment or assertion, which is
denied by his opponent, has the burden to establish that his averment or
assertion is true. And, he does not discharge this burden unless he leads
admissible and credible evidence from which the fact or facts he asserts can
properly and safely be inferred. The nature of each averment or assertion
determines the degree and nature of that burden.”<o:p></o:p>The main issue for determination in
this suit is whether or not the parties agreed that the whole debt inclusive of
interest is GH¢350,000.00?&nbsp; This has
never been the<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff’s case. Rather, it was the
</main>