NANA OSEI AFRIFA vs. EUGENE K. CHINEBUAH AND HUMPREY TENZAGH [2019]DLHC6904

Date	2019-03-15
Suit No.	SUIT NO: CM/BDF/0072/2017
Citation No.	[2019]DLHC6904

HIS LORDSHIP ERIC KYEI BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

[2019]DLHC6904
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													<main id="main" class="content" style="min-height: 60rem" >NANA OSEI
AFRIFA<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>EUGENE
K. CHINEBUAH AND HUMPREY TENZAGH<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: CM/BDF/0072/2017&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: 15TH MARCH, 2019<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP ERIC KYEI BAFFOUR ESQ. 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>Plaintiff had sought in his writ the recovery of an
amount of One Million and Twenty Nine Thousand Five Hundred and Ninety Ghana
Cedis (GH¢1,029,590.00) being the outstanding amount claimed to be owed to the
Plaintiff as well as interest on the amount&nbsp;
from 1st, February, 2017 till date of final payment. The
other reliefs may not be necessary for the determination of the matter now
before the court. <o:p></o:p><o:p>&nbsp;</o:p>Plaintiff posit that he did enter into a transaction
with Defendants wherein he advanced an amount being cedi equivalent of One
Hundred Thousand US Dollars ($100,000.00) to the Defendants. That the
Defendants were to repay the money together with interest at 50% within ten
days with five additional days as grace period. That Defendants failed to repay
the monies within the ten days plus the additional five days as per the
agreement the monies unpaid will attract a compound interest of 1% per each day
of default. <o:p></o:p><o:p>&nbsp;</o:p>1st Defendant did not deny the granting of
such a loan by Plaintiff but only claimed that he acted as a facilitator for
the 2nd Defendant who was a friend and needed money. It was further
raised that the transaction was an unlawful one as Plaintiff is not a duly registered
entity nor licensed to do so under the Borrowers and Lenders Act, 2008, Act 773
or the Money Lenders Act. 1st Defendant also raised as part of his
defence that the agreement charging 50% as interest rate plus a compound
interest of 1% per day of default as stated under the agreement was
unconscionable and ought not to be allowed by the court. &nbsp;<o:p></o:p><o:p>&nbsp;</o:p>Defendants have paid an amount of Gh¢430,000.000 out
of the total amount of Gh¢1,029,590.00 claimed by Plaintiff. It is to be noted
that the amount paid by Defendants represented the equivalent rate of the
dollar in cedis at the time the loan was granted by Plaintiff to Defendants in
December, 2016 but not the cedi rate to the dollar at the time payment was
made. With the principal amount granted by Plaintiff to Defendants per the loan
agreement having been paid and the only issue outstanding being that of
interest on the monies paid, I was guided by Order 33 Rules 3 and 5 of the High
Court (Civil Procedure) Rules, C. I. 47 which states as follows:<o:p></o:p><o:p>&nbsp;</o:p>“3. The Court may
order any question or issue arising in any cause or matter whether of fact or
law, or partly of fact and partly of law, and raised by the pleadings to be
tried before, at or after the trial of the cause or matter and may give
directions as to the manner in which the question or issue shall be stated”.<o:p></o:p>&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; <o:p></o:p>5. Where it
appears to the Court that the decision of any question or issue arising in any
cause or matter and tried separately from the main cause or matter
substantially disposes of the cause or matter or renders trial of the main
cause or matter unnecessary, it may dismiss the cause or matter or make such
other order or give such judgment as may be just”.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;Accordingly
I posed for the consideration of the parties by way of legal arguments
the issue as to whether interest on the principal amount paid is exigible, and
if so, at what percentage. In that regard, I further ordered the parties to
file Affidavits and exhibit the necessary documents that will support their
legal submissions before the court. I am safe to assume that with the
Defendants paying the principal sum involved, the issues 1, 2 and 4 are now
moot and</main>