BOUR AND OTHERS vs. KOJO AND OTHERS [1962]DLSC1398

Date	1962-07-10
Suit No.
Citation No.	[1962]DLSC1398

VAN LARE JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

J. REINDORF FOR THE APPELLANTS.

N.Y. B. ADADE FOR THE RESPONDENTS.

[1962]DLSC1398
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BOUR AND OTHERS <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KOJO AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 30<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 10TH JULY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

J.
REINDORF FOR THE APPELLANTS.<o:p></o:p>

N.Y.
B. ADADE FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

VAN LARE, SARKODEE-ADOO AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN
J.S.C.<o:p></o:p>Adumua-Bossman J.S.C. delivered the judgment of the court. This
appeal is against a judgment dated the 4th February, 1961, of the High Court,
Kumasi, (Crabbe, J. as he then was) whereby the plaintiffs’ claim for the sum
of £G4,033 5s. 2d. as amount due and payable under a contract of indemnity
between the parties, was upheld.<o:p></o:p><o:p>&nbsp;</o:p>The events leading to the institution of the action are briefly
these. Both parties, plaintiffs as well as defendants, were at the material
times, members of a limited liability company (which will be referred to
shortly henceforth as the company) incorporated under the Companies
Ordinance1(1), in force in 1957, with a share capital of £G250,000, and with
the primary object as set out in the memorandum exhibit C:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“To represent the interests of the whole of the producers of cocoa
and other raw materials of Ghana, and on their behalf to assemble and sell or
otherwise deal with the whole of the cocoa-crop of Ghana, and for that purpose
carry on the business of a Central Selling Agency and, if possible, of a
Central Purchasing Society, and the business of Buyers of cocoa and other
cultivated and naturally produced products of West Africa, and of Sellers,
Dealers, Shippers and Manufacturers therein.”<o:p></o:p><o:p>&nbsp;</o:p>By the articles of association (hereinafter shortly called the
articles) the company was organised on a regional basis and this case arose out
of the activities of some of the members of the Ashanti regional division
having its offices in Kumasi. The four plaintiffs together with three others,
namely Mr. B. D. Addai, Opanin Kwaku Tano, and Mr. Owusu Nyantekyi were
directors of the company in Kumasi, and all the directors together with the
defendants constituted the management committee of the said regional division.
It is not clear on what date in 1957 after the signing of the memorandum and
articles on the 26th September, 1957, certificate of incorporation was issued
to the company before it commenced its business operations; but by the 8th
July, 1957, a few months before the incorporation of the company, the agreement
on which the claim in the action is based, was entered into and reduced into
writing and signed by the parties (see exhibit D). For the present it is only
necessary to note that its general effect was that the plaintiffs undertook to
provide mortgages and other securities and guarantees to the Bank of West
Africa, Kumasi Branch (hereinafter referred to shortly as the bank) at the
request of their three fellow directors together with the defendants, for the
bank to make cash advances to the company, no doubt when it shall have been
incorporated and come into being, for purposes of its business operations; the
defendants in their turn undertook and bound themselves to indemnify the
plaintiffs in respect of any sums which they shall have been called upon to pay
to the bank for moneys advanced to the company but unpaid by the company. In
conformity with the terms of the agreement, the plaintiffs provided securities
by way of mortgages of their personal properties and gave written guarantee,
whereupon the bank made cash advances to the company. By the 30th September,
1958, the company was indebted to the bank in the sum of £G4,033 5s. 2d.
representing balance of unpaid advances together with interest and charges
thereon, and this amount the plaintiffs were called upon to settle. They
arranged and paid by instalments and by the 8th September, 1959, completed
settlement, and they thereafter instituted the action resulting in this appeal
claiming to be indemnified in that amount in accordance with the defendants’
undertaking contained in the agreement exhibit D.<o:p></o:p><o:p>&nbsp;</o:p>At the trial the defendants could not, and did not, deny that
advances were made to the company by the bank which the company were unable to
repay, and that the plaintiffs paid the amount claimed in the writ to the bank
in satisfaction of the outstanding balance due from the company to the bank.<o:p></o:p>