
JUDGEMENT  
The Plaintiff has sued the Defendants jointly and severally for the following reliefs endorsed on its writ filed on the 1st day of March, 2013.  
a) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis , Seventy -Four Pesewas (GH?131,642.74) being as of the 17th day of January, 2013, the outstanding balance in respect of the said credit facility granted by Plaintiff to the 1st Defendant b) Recovery of the agreed rate of interest of 30.5%per annum plus a margin of 3% per annum on a) above from the 17th January, 2013 till date of final payment. c) Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on ( a) and (b ) above from the 17th day of January, 2013 to date of final payment  d) An order for the judicial sale of the residential property belonging to the 2nd Defendant at Plot No. 853 Block 23, Section 171/2, Dome, Accra e) Costs including legal fees.  
Plaintiff avers that it is a limited liability company engaged in the business of banking. On or about the 29th day of January, 2010, it granted a credit facility to the 1st Defendant, a customer of Plaintiff bank.  As security for the repayment of the said loan, the 1st Defendant provided the following: a) A Mortgage of 2nd Defendant’s property situate in Dome, Accra  b) Assignment of all receivables in an Assignment between the Plaintiff and 1st Defendant. c) A Personal Guarantee of the 1st Defendant valued at One Hundred and Sixty-Eight Thousand, Two Hundred and Eighty-Four Ghana cedis (GH?168, 284.00).  d) A Floating Charge dated the 3rd day of February, 2010.             By the terms of the facility, the principal amount, the interest and other charges became due and payable immediately upon a failure by the 1st Defendant to pay the facilities on the due dates or whenever called in. According to the Plaintiff, by a letter dated the 18th day of February, 2011, it  reminded the  1st Defendant of the expiry date for the facility which was the 28th day of February, 2011 and also informed the 1st Defendant of its level of indebtedness, which stood at Sixty-Three Thousand, Two Hundred and Seventy-Three Ghana Cedis , Six pesewas (GH? 63,273,06)  at the time  but the 1st Defendant  failed to 
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honour its obligations such that its indebtedness stood at  One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131, 642.74) as at the 17th day of January, 2013 . It is for this reason that Plaintiff has instituted the present action.  
The 1st Defendant on the 16th day of August, 2013 entered conditional appearance to Plaintiff’s writ and on the 27th day of November, 2013 filed a defence to same. The 2nd Defendant however, though served by substituted service with the Writ and Statement of Claim failed to enter appearance. The Court therefore, on the 27th day of October, 2014 entered judgment in default of appearance against her.   
Subsequently, following the Parties’ inability to settle at the pre-trial settlement conference, this matter was set down for trial.  The Court accordingly, on the 11th day of March, 2016 gave directions regarding the further conduct of the suit. Counsel for 1st Defendant, though duly notified of this Court’s orders regarding the filing of witness statements failed to comply with same. Hearing notices were thereafter served on Counsel for 1st Defendant to attend the case management conference on the 18th day of May, 2016 but he failed or refused to appear without offering any explanation for his absence.  In the light of the persistent default on the part of 1st Defendant, this Court on the 18th day of May, 2016 struck out 1st Defendant’s Statement of Defence and Counterclaim in accordance with Order 32 Rule 7A(3)b of the High Court Civil Procedure Amendment Rules, 2014 CI 87. Copies of the order striking out the Defence and Counterclaim were served on both 1st Defendant and her Counsel but this drew no reaction from them.  The Plaintiff’s suit therefore stood uncontested at the trial. It however remained for this Court to determine whether or not Plaintiff is entitled to the reliefs endorsed on its Writ of Summons, for Section 14 of the Evidence Act, Act 323 states as follows: Except as otherwise provided by law, unless it is shifted a Party has 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.  
The effect of this provision is to cast the burden of proof and of persuasion on the Plaintiff who in this case, is required to adduce satisfactory evidence to substantiate its assertions, failing which its action must fail.  
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Kwaku Dzidepo, a loans recovery officer of Plaintiff bank, testified on Plaintiff’s behalf.  His evidence was essentially in line with Plaintiff’s pleadings.  In support of his evidence he tendered the following documents: EXHIBIT A - a copy of a Credit Facility Offer Letter dated the 29th day of January, 2010 addressed to 1st Defendant who duly signified her acceptance of the terms of the facility by the execution of same. EXHIBIT B - a copy of an agreement dated the 3rd day of February, 2010 and entered into between Plaintiff and 1st Defendant whereby 1st Defendant assigned all receivables of Candy-Love Enterprise to Plaintiff. EXHIBIT C - a copy of a Guarantee executed by the 1st Defendant in favour of Plaintiff. EXHIBIT D - a copy of a Floating Charge dated the 3rd day of February 2016 made in favour of Plaintiff by the 1st Defendant EXHIBIT E - a Deed Of Mortgage dated the 4th day of March, 2010 and entered into between Plaintiff and 2nd Defendant in respect of 2nd Defendants property situate at Dome together with a memorandum of registration of the said mortgage deed. EXHIBIT F - a copy of a Statutory Declaration sworn to by the 2nd Defendant confirming her consent to her property being used as security for the loan facility granted 1st Defendant. EXHIBIT G - a copy of the Land Title Certificate covering the property of 2nd Defendant used as security for the loan facility. EXHIBIT H - a Valuation Report issued in February 2010 in respect of 2nd Defendant’s property. EXHIBIT J - a copy of letter dated the 19th day of April 2010 notifying the 1st Defendant of the Disbursement of the Credit Facility to 1st Defendant on the 16th of February 2016. EXHIBIT K - a letter dated the 18th day of February 2011 reminding the 1st Defendant of the impending Expiry of the Credit Facility on the 28th day of February 2011. EXHIBIT L - 1st Defendant’s Statement Of Account covering the period 1st February, 2010 31st March, 2016 which indicate that the 1st Defendant has failed or refused to make any payments on the facility since the 1st day of February 2011. EXHIBIT M - a Final Demand Notice dated the 14th day of June, 2012 addressed to 1st the Defendant, informing her of her level of indebtedness to Plaintiff at the time and calling on her to settle same within Seven (7) days of receipt of the notice or face legal action.  
I have carefully examined the above listed exhibits and find that they amply support the case of the Plaintiff.  The evidence adduced also stands unchallenged. The Plaintiff’s claim therefore succeeds. 
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I accordingly enter judgment for the Plaintiff against the Defendants jointly and severally for the following reliefs: a) Recovery of the sum of One Hundred and Thirty-One Thousand, Six Hundred and Forty-Two Ghana Cedis, Seventy -Four Pesewas (GH?131,642.74) being as at 17th   January 2013, the outstanding balance owed  by the 1st Defendant on the credit facility granted the 1st Defendant by Plaintiff.  
It would appear that reliefs (b) and (c) endorsed on the Writ of Summons are at variance with the reliefs prayed for in the witness statement of Plaintiff’s representative.   As regards relief (b) indorsed on the Writ of Summons, Plaintiff seeks an order for the “Recovery of the agreed interest of 30.5% per annum plus a margin of 3% per annum on (a) above from 17th January 2013 to date of final payment.”  However, in the witness statement filed by Plaintiff’s representative, Plaintiff prays for “Recovery of the agreed interest rate of 35% per annum on (a) above from January, 2013 to date of final payment.”  
Again, with respect to relief (c), where the endorsement on the Writ of Summons seeks an order for the  “Recovery of the agreed penal rate of 10% on facility amount above the agreed interest rate on  (a) and (b) above from 17th day of January, 2013 to date of final payment”, Plaintiff’s representative in his testimony prayed for the “Recovery of the agreed penal rate of 12% on the credit facility amount above the agreed interest rate on (a) and (b) from the 17th day of January 2013 to date of final payment”.   I find from EXHIBIT A that the Parties agreed on an interest rate of 35.5% and a penal rate of 12% per annum and not the rates indicated on the Writ of Summons.  
In any event, this discrepancy in my view, is resolved by Order 11 Rule 15(2) of the High Court Civil Procedure Rules (CI 47) which states that the “Plaintiff may in the Plaintiff’s statement of claim  alter, modify or extend any claim made by the Plaintiff in the endorsement of the writ without amending the indorsement .”  This is subject of course, to the rule that the allegations made in the Statement of Claim should arise from the same facts giving rise to the cause of action mentioned in the Writ of Summons.    
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Applying the said rule to the facts of this case, paragraphs 6 (a) and (b) of the Plaintiff’s Statement of Claim in my view, will serve to override the above mentioned defects in Plaintiff’s writ.   In the premises, judgement is further entered in favour of Plaintiff against the Defendants for:  b) Recovery of the agreed interest rate of 35.5% per annum on (a) above from the 17th day of January, 2013 to date of final payment. c) Recovery of the agreed penal rate of 12% on the facility amount above the agreed interest rate on (a) and (b) above from the 17th day of January 2013 to date of final payment.  
In addition to the above reliefs, relief (d) prays for the judicial sale of residential property belonging to 2nd Defendant situated at Plot No. 853 Block 23, Section 171/2, Dome, Accra. I do not think relief (d) can be granted in addition to reliefs (a) (b) and (c).  The essence of securing the loan facility with the 2nd Defendant’s property was to ensure that the said property could be sold to offset any amount owed Plaintiff, in the event of a default on the part 1st Defendant.  This Court cannot therefore, order the Defendants to pay the amount outstanding on the loan facility in addition to ordering the sale of 2nd Defendant’s property.  Reliefs (a), (b) and (c) on the one hand and relief (d) on the other, can only be granted in the alternative. I will accordingly order in the alternative, the judicial sale of 2nd Defendants property situated at Plot No. 853, SECTION 171/2, DOME, ACCRA in event of a failure by the Plaintiff to recover the amount owed as granted per reliefs (a) (b) and (c).   
In conclusion, I must say that the work of this Court would have been much easier, had Counsel for Plaintiff applied a little more diligence in the presentation of Plaintiff’s case to this Court. It is my hope that Counsel will in future do the necessary to assist the Court in doing its duty.  
I award costs of Thirteen Thousand Ghana Cedis (GH?13,000.00) in favour of Plaintiff    
         (SGD)            MRS. AKUA SARPOMAA AMOAH             JUSTICE OF THE HIGH COURT aey/ 