NATIONAL INVESTMENT BANK vs. SUNYANI SAWMILLS LTD. AND OTHERS [1988]DLHC647

Date	1988-09-25
Suit No.
Citation No.	[1988]DLHC647

OWUSU-SEKYERE J.

SAMMY ACQUAYE FOR THE PLAINTIFF.

OBENG-MANU FOR THE DEFENDANTS.

[1988]DLHC647
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													<main id="main" class="content" style="min-height: 60rem" >NATIONAL INVESTMENT BANK <o:p></o:p>vs. <o:p></o:p>SUNYANI SAWMILLS LTD. AND OTHERS<o:p></o:p>[HIGH COURT, SUNYANI] <o:p></o:p>[1989-90] 2 GLR 71<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
29
SEPTEMBER 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMMY ACQUAYE FOR THE PLAINTIFF.<o:p></o:p>

OBENG-MANU FOR THE DEFENDANTS.<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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OWUSU-SEKYERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OWUSU-SEKYERE J.<o:p></o:p>On 9
February 1987 the plaintiff-bank issued out of this court a writ of summons
against the defendants jointly and severally, claiming:<o:p></o:p>“1.
¢17,597,914.19 being the total of an I.D.A. term and working capital loan
granted the first defendant and guaranteed by the second and third defendants
as well as ten per cent per annum charge as at 31 December 1986 on the I.D.A.
term loan of ¢1,170,872.15 in addition to accumulated interest as at 31
December 1986 of ¢7,775,981.95 on both I.D.A. loans the repayment of which
moneys has been long overdue. 2. Further accruals of interest and other charges
on the outstanding balance from time to time of the I.D.A. term and working
capital loans from 1 January 1987 to the date of repayment at the prevailing
bank rate (on forestry) of 22 and a half per cent per annum or such other bank
rate adjustments as shall be made by the Bank of Ghana in accordance with the
heads of agreement between the parties. 3. The plaintiff further claims against
the first defendant alone ¢384,066.96 being the outstanding balance due and
owing from the first defendant as at 16 January 1987 on an overdraft facility
of ¢619,000 granted to the first defendant in June 1984 which facility has
since expired.”<o:p></o:p><o:p>&nbsp;</o:p>The writ
of summons was accompanied by a statement of claim. The first and second
defendants entered appearance through their solicitor at the time, Mr E. Y.
Kumi, on 18 February 1987 but the third defendant on 4 February 1987 entered
appearance under protest by himself. Then on 1 June 1988, the plaintiff-bank
filed summons for judgment seeking leave to sign final judgment against the
defendants on the grounds that the defendants had no defence to the action
against them. On 24 June 1988 the defendants through their newly appointed
solicitor, Mr Obeng-Manu, filed an affidavit in opposition to the summons
praying the court to grant them leave to defend the plaintiff’s action. But
before the summons could be heard, the plaintiff on 29 August 1988 filed notice
of discontinuance against the third defendant in the suit, and as a result the
action against the third defendant was discontinued.<o:p></o:p><o:p>&nbsp;</o:p>When the
summons for final judgment came up for hearing on 20 September 1988, counsel
for the defendants, Mr Obeng-Manu, raised a point that as a matter of law the
action could no longer be prosecuted by the plaintiff-bank on the ground, inter
alia, that the plaintiff-bank in discontinuing against the third defendant who
together with the second defendant were guarantors of the loan to the first
defendant, the responsibilities and liabilities of the parties under the
contract have been, as he put it, eroded. Counsel maintained that the second
defendant in particular has been prejudiced because the bank neither notified
the other defendants nor gave reasons for the discontinuance against the third
defendant, and that the bank was consequently in breach of the terms of the
contract between it and the defendants. In sum, counsel strongly submitted that
the liabilities and responsibilities of the second defendant under the contract
have come to an end inasmuch as the second defendant stood jointly and
severally with the third defendant as grantors to the first defendant, and
urged the court to strike out the action because, as he put it, it would be
oppressive, unfair, unjust, inequitable, immoral, wrongful and patently illegal
for the action to be prosecuted in its present form. Counsel cited the case of
Republic v. Military Tribunal; Ex parte Ofosu-Amaah [1976] 2 G.L.R. 5 at 10 and
11, C.A. to support his contention.<o:p></o:p><o:p>&nbsp;</o:p>Replying,
counsel for the plaintiff-bank, Mr Sammy Acquaye, submitted that the phrase
“jointly and severally” must not be construed as two separate and independent
words conjoined by the word “and”; it is a legally formulated and adopted
phrase with a distinct meaning, and that under a contract where the parties
intend that they be taken together in any legal cause or matter and not
individually at anytime whatsoever the appropriate word to employ is “jointly”;
and in a cause or matter where it has been intended that it should be possible
for legal process to issue against one or more of a joint entity, the phrase
“jointly and severally” has been adopted. Counsel further submitted that
“jointly and severally” is a simple phrase recognised and adopted by the law in
all legal causes or matters arising between parties where an option is being
left for one party to claim against others either by taking them together as a
joint entity or by proceeding against one or more of such a joint entity if he
so desires. Counsel also referred to phrases such as “joint or several”, “joint
and several”, “and/or” in interpretation of legal documents.<o:p></o:p>