JUDGEMENT   The Plaintiff is a bank operating from various branches in Ghana including the Agona Swedru and the Boundary Road, Accra branches.  The Defendant is the Managing Director of Rinacand Company Ltd., a limited liability company incorporated under the laws of the Republic of Ghana transacting business from its offices in Agona Swedru and Accra (hereinafter “Rinacand/the Company”).  
In the Plaintiff’s Statement of Claim, Plaintiff claims against the Defendant, as mortgagor and also in his personal capacity, the following reliefs: 1. An order for the judicial sale of the mortgaged properties described in the attached statement of claim in recovery of the judgment debt and cost awarded in favour of the Plaintiff in Suit No. C2/9/2011 entitled Ghana Commercial Bank Ltd. v. Rinacand Company Ltd. the repayment of which has been secured by the Defendant; 2. A further order for payment of any amount outstanding on the sale of the mortgaged properties; and 3. Cost of this suit. The material facts which gave rise to the matter before me are detailed as follows in the Plaintiff’s Statement of Claim and the testimony of its representative, Kwame Adana, who 
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has worked with the Bank for twenty-two years (22), twelve (12) of those years in the Risk Management Department, of which he is the Deputy Head and the officer responsible for loans recovery.  Rinacand, as a customer of the Plaintiff bank (then known as Ghana Commercial Bank Ltd.) obtained from the Plaintiff banking facilities which included four (4) facilities granted on various dates from April 2007 to June 2008.  By the mortgages listed below the Defendant, secured the repayment of the facilities granted to the Company: (a) Mortgage dated 25 September, 1990 in respect of house numbered G/96, Nkuben Street, Agona Swedru and registered as Land Registry No. 2173/1992 with file No. CR 596/91, marked into evidence as Exhibit A; (b) Mortgage dated 25 May 1993 in respect of land/buildings known as Plot No. 509 North Kaneshie Housing Estate, Accra, registered as Land Registry No. 3645/1994 with file No. AR/SHC/381/93; Exhibit B. (c) Mortgage dated 11 January 1996 in respect of Plot No. 82 Agona Swedru Residential Area registered as Land Registry No. 408/1999 with file No. CR1076/98, Exhibit C.  
The Company failed to pay the facilities as agreed and the Plaintiff instituted Suit No. C2/9/2011 entitled GHANA COMMERCIAL BANK LTD. v. RINACAND COMPANY LTD. in the High Court, Agona Swedru, for recovery of monies overdue on those facilities.  See Exhibits D and E.  On 19 April, 2012, the Company, represented by Counsel, submitted to judgment on the bank’s application for summary judgment (hereinafter, the “19 April, 2012 Judgment”).  The court entered judgment on behalf of the Plaintiff in the sum of GH&#8373; 1,629,765.50, interest thereon compounded at the Plaintiff’s prevailing interest rate as at the date of judgment from 31 July 2010 to the date of final payment, and cost of GH&#8373;162,927.55.  A copy of the judgment is marked into evidence as Exhibit F.  Rinacand made some efforts at paying off the judgment debt which efforts were deemed inadequate by the Plaintiff.    
On 8 May 2014, the Plaintiff made a demand on the Defendant as mortgagor to pay the judgment debt then standing at GH&#8373;4,764,898.32; notifying the Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96.  See Exhibit K.  
According to the testimony of Plaintiff’s witness, Rinacand Co. Ltd. had made total payments of GH&#8373;475,000.00, GH&#8373;200,000.00 of which was paid after the institution of the present suit.  See Exhibit O.  
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It is Plaintiff’s case that it has given the Defendant and Rinacand sufficient opportunity and time to liquidate the judgment debt and cost but they have failed to do so.  Indeed, at the close of Plaintiff’s case during the trial, Plaintiff tendered into evidence, Exhibit P, a revised statement of account in which Plaintiff had reduced the Defendant’s liability by adjusting the interest rate from 33% to 25% having struck out the penal interest rate with the final liability of Rinacand Co. Ltd. now fixed at ¢5,263,307.23 as at 31 December, 2015.  
In his defence, the Defendant relied on his Statement of Defence and also tetified in his own behalf.  He substantially confirmed the general facts of the transaction as narrated by the Plaintiff but went further to state that the initial amount of the facilities granted him by the Plaintiff was in the amount of GH&#8373;750,000.00, which Rinacand took to execute government construction contracts awarded to it.  Due to the failure of the government to make prompt and full payments for the works done, the Company could not redeem the loans, leading to its current indebtedness to the Plaintiff bank.  However, according to Defendant, from his own resources, he has been able to liquidate GH&#8373;550,000.00 out of the total indebtedness of the company.  
It is the Defendant’s further case that the parties after the 19 April 2012 Judgment, entered into negotiations and compromised the said judgment and the Plaintiff cannot go back to enforce same.  According to the Defendant, in good faith and in furtherance to the said negotiation agreement, and to the knowledge of Plaintiff, he put up his property, Plot No. 509 North Kaneshie Housing Estate, Accra for sale to fulfill the terms of the compromised agreement.  He also testified that as at November, 2015, he was in talks with a potential buyer of the property which in 2014 was valued by HFC at One Hundred and Seventy-Five (175,000.00) USD taking into consideration the extensive additional construction works done to the property.  
Based on these facts, the Defendant contends that he has not breached the terms of the negotiations with the Plaintiff; the Plaintiff is not entitled to judgment as endorsed on the writ of summons and should be ordered to withdraw the present action and go back to the negotiation table because the negotiations are still in force.  
The following issues were set down after pre-trial as material to the disposition of the suit: 1. Whether or not the judgment dated 19th April, 2012 has been compromised. 2. Whether or not the Plaintiff is entitled to its reliefs 3. Any other issues arising from the pleadings. 
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I have reviewed the record of proceedings and the evidence adduced in this case extensively.  I have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both counsel on their behalf.   The first issue that I would like to resolve is whether or not the judgment dated 19th April, 2012 has been compromised by the parties? 
Contrary to Defendant’s contention that the parties after the said judgment of 19 April 2012, entered into negotiations, which compromised the said judgment, Plaintiff’s witness testified that between 21 March, 2014 and 3 December, 2014, the several attempts at settlement made by both parties were inconclusive, evidenced in the correspondence between the parties marked into evidence as Exhibits H, J, J1, K, K1, L, M, N, and N1.     
From the evidence of the record and the testimony of the parties, can it be deduced that there was a conclusive agreement between the parties herein to compromise the 19 April, 2012 Judgment?  An agreement to compromise a judgment will be enforced by our courts because public policy favours the resolution of controversies through compromise and settlement rather than litigation.  A compromise, afterall, fosters amicable, efficient and inexpensive resolutions of disputes.  
In ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), Justice Looney defined a “compromise” as “… an agreement between two or more persons who, to avoid a lawsuit, amicably settle their differences on such terms as they can agree on.  It is essential to a compromise that there be mutual concessions or yielding of opposing claims …”.  My clear thinking, then, is that, for the 19 April, 2012 Judgment to have been compromised, the parties to this suit must have entered into some form of mutual agreement to concede or yield their opposing claims or part of those claims for the purpose of bringing an end to the litigation between the Plaintiff and Rinacand.  For a compromised agreement to be enforced by the court, there must be a final agreement between the parties to enter into such an agreement. In stating thus, I am reminded of the case of DAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) where it was held that an agreement to compromise was in the nature of any other contract, requiring an offer and acceptance, consideration, and parties who have the capacity and authority to agree as they do.   
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The following events are of notable import here.  By Exhibit H, Rinacand wrote to Plaintiff’s counsel initiating the proposal for payment of its debt by specified installments.  This proposal was rejected by the Plaintiff through Exhibit J.  Rinacand, subsequently, made further proposals of payment terms evidenced in Exhibits L and M.  In particular, by the terms of Exhibit M, it sought to apply payments it had made over the years to what it described as the principal and offered to conclude payment of the debt arrived at according to its own calculations by May 2016.  Excerpts of Defendant’s subsequent proposals contained in Exhibit L as follows: “Dear Sir, RE: INDEBTEDNESS OF RINACAND COMPANY LTD - A COUNTER PROPOSAL We refer to your letter dated 8th May, 2014 informing us that Ghana Commercial Bank Limited has rejected our proposal for the retirement of the outstanding balance on the loan contracted from the bank. … In pursuit of this abiding objective, we wish to submit the following proposal for the consideration of the Bank.  ... Hopefully, the bulk payments to be made in July and December, 2014 would retire the outstanding balance on the principal amount …” And in Exhibit M, Defendant further proposed the following: Dear Sir, PROPOSAL FOR INTEREST PAYMENT Further to our proposal on principal payment dated 3rd June, 2014, we wish to make proposals for the payment of the interest so far accrued on the facilities.  … We are in process of selling one of our fixed assets and expect the conclusion of documentation by the end of August…”.  
These proposals were however rejected by the Plaintiff and its decision conveyed by its counsel’s letter to Rinacand dated 18 September, 2014; See Exhibits N and N1.  According to Plaintiff’s evidence, in Exhibit N1, Plaintiff on 5th August, 2014, made a counterproposal to Rinacand indicating its preparedness to accept the payments stipulated therein in full liquidation of the debt, accrued interest and legal fees.    
Before I go further, I will set out the portion of Exhibit N1 which, according to the Plaintiff, amounted to a rejection and a counter-offer.  It reads as follows:  
“Dear Sirs, 
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RE: GHANA COMMERCIAL BANK LIMITED VRS RINACAND COMPANY LIMITED & ANOTEHR PROPOSAL FOR INTEREST WAIVER AND PAYMENT BY INSTALMENTS We advise that the Bank has considered the above-named Defendants’ Repayment Proposal dated 25th June, 2014 and declined same. However, the Bank has made a Counter-Offer as detailed below: ….. iii. The Defendants should accept the terms and conditions in writing within seven (7) days from the date of advice. iv. The Bank shall waive accrued interest of GH¢3,023,438.47 (as at 30/06/2014) and any subsequent interest. v. the waived interest of GH¢3,023,438.47 (as at 30/06/2014) shall be reinstated and the Judgment executed if they fail to accept the offer within seven days from the date of advice or failure to make the payments as indicated above without recourse to them. vi. The Security held by the Bank shall be discharged only after outstanding Guarantees issued in favour of the Ministry of Roads & Transport and the Ministry of finance & Economic Planning (under which the Defendants are liable) have been cancelled by the Bank. vii. The arrangement shall be reduced into Terms of Settlement and filed in Court.”  
It is noted that the proposal made by the Defendant to the Plaintiff bank is an offer which Plaintiff was required by law to accept.  In order to qualify as an acceptance, the response of the Plaintiff must be a final and unqualified assent to the terms proposed in the offer.  To conclude the contract, the Plaintiff bank’s response must be an absolute and definite acceptance of the terms proposed in the offer and must leave no room for doubt.  However, from the evidence, it has been established that the Plaintiff bank made a counter-proposal.  A counter-offer or proposal constitutes a rejection of the original offer and amounts to the making of a new offer by the Plaintiff bank.  Furthermore, a counter-offer operates to destroy or nullify the original offer such that it cannot subsequently be accepted.  See the English case of HYDE v WRENCH (1840) 3 Beav. 334.    I have examined the evidence before me and I do not find any evidence put in by the Defendant to show that the Company accepted the counter-proposal of the Plaintiff.  According to Plaintiff’s case, neither Rinacand nor the Defendant had responded to its counter-proposal as at 3 December, 2014 when Plaintiff issued the present writ, even though there was evidence that Defendant sent one Jiffy Peter Aidoo to collect Exhibits N 
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and N1 from its counsel’s office.  Thus, what is on record demonstrates that the Plaintiff rejected the offer made by the Company in its earlier proposal for which Exhibit N represents.  This offer, having been rejected, cannot be relied on by the Defendant to say that there was a compromise of the 19 April 2012 Judgment.     Having regard, therefore, to all the surrounding circumstances of the case, and particularly to Exhibits L, M, N and N1, as well to the previous negotiations that had already taken place between the Defendants and the Plaintiff, it seems to me that the uncontroverted evidence of the record supports a clear finding that Defendant’s offers to compromise the 19 April 2012 Judgment were never accepted by the Plaintiff nor did Defendant also accept Plaintiff’s counter-proposal.  The Defendant’s view that Plaintiff’s last counter-proposal was still open even after 3 December, 2014, is not supported by the evidence of the record.  Defendant was required by the terms of Exhibit N and N1 to accept the counter-proposal within seven days of their receipt.  Defendant never availed himself of this opportunity in writing nor in deed by making payments to amortise the loan as prescribed therein.  There was, therefore, no offer and acceptance to constitute a valid agreement or contract to compromise the 19 April 2012 Judgment.    
I now turn my attention to the issue of whether or not the Plaintiff is entitled to its claim.    
The general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A. See also FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 which also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) encapsulates the foregoing principle in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   
Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires 
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proof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     
From the foregoing, therefore, it is clear that the Plaintiff, to succeed on its claims, it assumes the onus of proving its assertions against the Defendant.  
It is the Plaintiffs’ case that the Defendant mortgaged his personal properties to secure payment of the judgment debts of Rinacand based on which it is entitled to an order for the judicial sale of the said mortgaged properties and a further order for payment of any amount outstanding on the sale of the mortgaged properties.    
To prove its claim, Plaintiff provided the court with copies of the mortgages covering these properties all of which were registered with the Land Registry under the Land Registry Act, 1962, (Act 122) in compliance with Section 3 of the Mortgages Act, 1972, (NRCD 96).  See Exhibits A, B, and C.  Plaintiff also provided the court with a copy of the 19 April 2012 Judgment, Exhibit F, which established the judgment debt entered against Rinacand in favour of the Plaintiff and Exhibit K, evidencing Plaintiff’s notice to Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96; Exhibit G, comprising all payments made by Rinacand since Plaintiff got judgment in the High Court, Agona Swedru, in the amount of GH¢455,00.00.  Finally, Plaintiff also provided the Court with Exhibit P, a revised statement of accounts fixing the final liability of Rinacand at ¢5,263,307.23 as at 31 December, 2015 as opposed to ¢7,635,378.55 at the end of 31 November, 2015 evidenced in Exhibit G.  
Plaintiffs’ documentary evidence was corroborated by the testimony given on oath to this court by the Plaintiff’s representative, which was not controverted by the Defendant during the trial.    
Indeed, in his Statement of Defence, Defendant did not dispute the fact that Rinacand was indebted to the Plaintiff.  The Defendant, however, claimed that he had, out of his own personal resources, repaid GH¢550,000.00 of the loan, in contradiction to the testimony of Plaintiff’s representative that Defendant had paid GH¢455,000.00.  Yet Defendant failed to adduce any evidence in support of this assertion.  The court is therefore left with no 
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option than to believe the testimony of the Plaintiff’s representative which was corroborated by the documentary evidence tendered into evidence by the Plaintiff.    
In making a finding on the foregoing issue, I am further guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA.  
From the evidence adduced in this case and the testimony of Plaintiff’s representative, I am satisfied that it is more probable than not that the Defendant has paid GH¢455,000.00 of the outstanding debt out of his own personal means, leaving ¢5,263,307.23 as the balance due and owing.    
The question that arises now and which requires my attention is whether or not Plaintiff is entitled to an order of judicial sale of the personal properties of the Defendant used in securing the loan facilities.    
A review of Exhibits A, B and C reveals that the recitals of all three mortgages, in similar fashion, commence as follows: “This Mortgage is made ….Between ATO KWAMINA ARHIN ….(hereinafter called “the  Mortgagor” … of the first part AND RINACAND COMPANY LIMITED acting by its Managing Director – ATO KWAMINA ARHIN  … (hereinafter called “the Customer”) of the second part AND GHANA COMMERCIAL BANK … (hereinafter called “the Bank” …) acting by GLADYS ATTOBRAH (MRS.) … of the third part.”   
These recitals conclusively establish that the Defendant, as Mortgagor, personally mortgaged his personal properties to secure the loans advanced by Plaintiff bank to Rinacand, of which he was and still is the Managing Director.   Counsel for Defendant, in his written address, argues that Defendant, as Managing Director of Rinacand, is only an employee and for that matter an agent, who cannot be held vicariously liable for the actions and inactions of his principal under the rules.  Furthermore, defence counsel argues that the Defendant should not be made to carry the liabilities incurred by the Company, which is a completely different legal personality from 
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the Defendant and he cites the Supreme Court case of MORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 in support of this argument.  
I must say here, that I cannot accept the arguments proffered by Counsel for the Defendant as agency does not arise in this matter at all.  The Defendant’s role as managing director and an officer of the Company is totally separate and apart from his personal obligations that arise from the fact that he used his own personal properties to secure the loans taken out by the company.  The Defendant, in this case, is not being sued on acts he may have undertaken on behalf of the Company.  It is his personal guarantee of the loans granted the Company that Plaintiff seeks to enforce.   
In the Supreme Court case of MORKOR v KUMA (No. 1), supra, relied on by defence Counsel, it was held that in general, unless there are circumstances justifying the lifting of the veil of incorporation, the court cannot hold a director or an officer of a limited liability company jointly liable with the company for its debts.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company. The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  “… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability were established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  [Emphasis added]. Thus, flowing from the above quote, even from the MORKOR v KUMA (No. 1) case, where specific personal liability could be established against the appellant in that case, she would have been held liable for the debts of the company.    
Plaintiff has succeeded in establishing the fact that it has a judgment against Rinacand of which the Defendant was the Managing Director.  Plaintiff has also established the fact that the Defendant mortgaged his personal properties to secure the facilities and Rinacand failed to satisfy the judgment debt.  In such a situation, specific personal liability has been established against the Defendant in this case flowing from his personal guarantee to pay off the loans should the Company fail to do so and the law will allow the Plaintiff to fall on that personal guarantee or security provided by the Defendant, without even having recourse to lifting the veil of incorporation.  
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I therefore find that the Plaintiff has met its burden of proving that it is entitled to its reliefs.  
CONCLUSION  
From the foregoing, I am satisfied that the Plaintiff’s action succeeds and I award costs in the sum of GH¢80,000.00 in favour of the Plaintiff against the Defendant.    .   
                                               (Sgd)  JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) COUNSEL:     R.O. SOLOMON, ESQ., OF R.O SOLOMON CONSULTING, COUNSEL FOR PLAINTIFF CHARLES ASIEDU, ESQ., OF DADZIE, AMPOFO AND ASSOCIATES, COUNSEL FOR DEFENDANT  
CASES REFERRED TO:   ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), 
DAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) 
HYDE v WRENCH (1840) 3 Beav. 334. 
BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 
HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  
FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 
MAJOLAGBE v. LARBI [1959] GLR 190  
KLUTSE v. NELSON [1965] GLR, 537, SC 
ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. 
MORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 