FIRST ATLANTIC BANK vs. MR. FRANCIS KWAKU FRIMPONG & ANOTHER [2013]DLHC3863

Date	2013-10-20
Suit No.	SUIT NO.BFS/61/13
Citation No.	[2013]DLHC3863

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

AGYEI NUAMAH FOR THE PLAINTIFF.

TAWIAH AMOATENG FOR THE DEFENDANT.

[2013]DLHC3863
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">FIRST
ATLANTIC BANK<o:p></o:p></a>vs.<o:p></o:p>MR. FRANCIS KWAKU FRIMPONG &amp; ANOTHER<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/61/13&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 20TH OCTOBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AGYEI
NUAMAH 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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JUDGMENT<o:p></o:p>

</div>The 2nd Defendant herein
has been sued as a guarantor and mortgagor in respect of a loan facility of
GH¢50,000.00 extended to the 1st Defendant by the Plaintiff Bank
which remains&nbsp;&nbsp; unpaid even though a
final judgment in default of appearance has been taken against the 1st
Defendant. The Plaintiff claims that the Defendants have failed to pay the
outstanding balance of GH¢79, 876.18 together with the agreed interest of 32%
per annum plus 3.5% per annum as penalty interest on unpaid balances.<o:p></o:p>On his part, the 2nd
Defendant denied having any dealing with the Plaintiff Bank. He alleged in his
statement of defence that he gave out his lease to one Isaac Opoku Danso who
needed a collateral security for a loan. Later, the said Isaac Opoku Danso
allegedly led Mrs. Betty Kyei Asante to him and rather requested that the lease
be offered to this lady to secure a loan from the 1st Defendant. The
2nd Defendant further averred that he executed a memorandum of
agreement with both Isaac Opoku Danso and Betty Kyei Asante and consented to
the use of the lease as security by Betty Kyei Asante. He alleged that the said
Betty Kyei Asante has defaulted in repayment of the loan extended to her by the
1st Defendant and so he and Isaac Opoku Danso have jointly sued her.
At all material times, the 2nd Defendant alleged that he was a
guarantor to Betty Kyei Asante who took a loan from the 1st Defendant.<o:p></o:p><o:p>&nbsp;</o:p>In its reply, the Plaintiff
emphasized that the 2nd Defendant was a guarantor for the 1st
Defendant’s loan facility and even signed a statutory declaration dated
12/10/2008 and a legal mortgage to that effect. <o:p></o:p>Three issues were set down for
trial, namely:<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:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the 2nd Defendant was 1st Defendant’s
 guarantor in respect of a loan 1st Defendant took from
 Plaintiff?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not in furtherance of this guaranteeship the 2nd Defendant
 executed a legal mortgage and statutory declaration dated 12/10/2008?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Plaintiff is entitled to its claim against the 2nd
 Defendant.<o:p></o:p></li>
</ol>It appears to me that
the burden of persuasion as well as the evidential burden on these issues rest
on the Plaintiff. In the case of Sumaila Bielbiel v Adamu Dramani &amp; AG
(2012) SCGLR 370, the court held, among other things, that “ordinarily, the
burden of persuasion lies on the same part as bears the burden of producing
evidence” unless it is shifted. See sections 10(1) and 11of the Evidence Act,
NRCD 323.<o:p></o:p>There are a host of
authorities which affirm the proposition that each part bears the burden of
proof in the assertions in his or her pleadings if the assertions are denied
his or her opponent. This principle was stated&nbsp;
by Kpegah&nbsp; JA (as he then was)
and&nbsp; have been applied in more recent
cases such as Continental Plastics v IMC Industries-Technik GMBH (2009) SCGLR
298 at 307; Yaa Kwesi v Arhin Davis (2007-2008) SCGLR 50; Takoradi Floor Mills
v Samir Faris (2005-2006) SCGLR 883.<o:p></o:p>In respect of the 1st
issue, namely, whether or not the 2nd Defendant was a guarantor of a
loan taken from Plaintiff by the 1st Defendant, the Plaintiff’s
representative told the court that the two defendants and a witness came to his
office where the 2nd Defendant executed the requisite documents. He
went ahead to tender a statutory declaration signed by the 2nd
Defendant mandating the 1st&nbsp;
Defendant to use his property as collateral&nbsp; (exhibit B) and a mortgage deed signed by the
2nd Defendant&nbsp; (exhibit C). <o:p></o:p>The 2nd Defendant did not
deny signing exhibits B and C. The property described in exhibit B has been
identified in exhibit C and a copy of the site plan has been attached
thereto.&nbsp; Again, this mortgage document
was signed by the 2nd Defendant.<o:p></o:p>Counsel for the Plaintiff submitted
that a contractual relationship exists between the Plaintiff and the &nbsp;2nd&nbsp; Defendant in the form of a legal mortgage
over the 2nd Defendant’s prop</main>