COWRIES FINANCE LTD vs PAKO BAY SEAFOOD LTD [1999]DLHC123

Date	1999-05-05
Suit No.
Citation No.	[1999]DLHC123

AKOTO-BAMFO J

PETER AMABLE FOR THE PLAINTIFF-APPLICANT.

CHARLES AMENYAGLO FOR THE DEFENDANT-RESPONDENT.

[1999]DLHC123
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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">COWRIES FINANCE LTD<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;;
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mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">PAKO BAY SEAFOOD LTD<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 514<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.0pt;
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</div>COUNSEL:<o:p></o:p>PETER AMABLE FOR THE PLAINTIFF-APPLICANT.CHARLES
AMENYAGLO FOR THE DEFENDANT-RESPONDENT.___________________________________________________________________________________________________________________________CORAM:AKOTO-BAMFO J___________________________________________________________________________________________________________________________JUDGMENT OF AKOTO-BAMFO J.<o:p></o:p>This is an application by the plaintiff-applicant (hereinafter
referred to as the plaintiff) for summary judgment under Order 14 of the High
Court (Civil Procedure) Rules, 1954 (LN 140A) as amended against the
defendant-respondent (hereinafter referred to as the defendant) for the sum of
¢48,506,855.<o:p></o:p>To appreciate the issues raised, I find it necessary to relate
briefly the history of this case. On 19 May 1998 the plaintiff took out a writ
of summons for an order for the payment of ¢46,506,855,[sic](3) among other
reliefs. When service of the writ and statement of claim was effected on the
defendant, a conditional appearance was entered on its behalf on 2 June 1998.
On 18 June 1998, the instant application was filed. The defendant filed a
defence and an affidavit in opposition.<o:p></o:p>In urging the court to grant the application, learned counsel for
the plaintiff submitted that the defendant approached the plaintiff for a loan
facility of ¢15 million to enable it finance the export of lobster tails.
According to the terms of the contract, the loan was to be repaid within 30
days at an agreed interest rate of eight per cent and that even though several
demands had been made for the payment of the principal and interest, the
defendant had failed to pay. According to counsel, when the loan remained
unpaid and the Bank of Ghana had to revise its interest rates, the defendant
was notified of the revision and that even though the defendant issued
post-dated cheques and gave assurances that it would settle its debts, the cheques
were dishonoured. According to learned counsel, the defendant had no defence to
the action.<o:p></o:p>The defendant resisted the application. On its behalf, learned
counsel argued that the application was misconceived since it failed to comply
with the requirements of Order 14, r 2(1) of LN 140A. According to learned
counsel, there was no statement of account showing the sum owed, neither was
there an affidavit verifying the facts. He further submitted that even though
the plaintiff company was alleged to have changed its name, it failed to comply
with sections 15(3) and 22 of the Companies Code, 1963 (Act 179) in that the
approval of the registrar was not obtained and that well after the purported
change, the name Akaba &amp; Associates appeared on documents made by the
company. He further submitted that the transaction was illegal since it
offended against the provision of the Moneylenders Ordinance, Cap 176 (1951
Rev), and therefore urged the court to reopen the transaction. He additionally
contended that since the interest rate of eight per cent was agreed upon by
both parties, the plaintiff could not revise the rates without the consent of
the defendant.<o:p></o:p>The procedure under Order 14, r 13 of the LN 140A as amended by
the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129)
enables a plaintiff to obtain summary judgment in an action begun by a writ
which does not include a claim for libel, slander, malicious prosecution, false
imprisonment, seduction, breach of promise to marry and a claim based on an
allegation of fraud. The application can only be made on the ground that the
defendant has no defence to the claim or part thereof, and would therefore be
inexpedient to proceed to a full trial. To successfully bring an application
under Order 14 of LN 140A these conditions must be met:<o:p></o:p>(1) The defendant must have entered appearance.<o:p></o:p>(2) A statement of claim must have been served on the defendant,
the affidavit must verify the facts and it must contain a statement of the
deponent’s belief that there is no defence to the claim or part thereof in
respect of which the application is made.<o:p></o:p>In the matter under consideration, even though the defendant
initially entered a conditional appearance and thereby reserved to itself the
right to object to the jurisdiction, the writ and service thereof, it evidently
abandoned that stance for it failed to bring the application within the
statutory period. That the conditional appearance, therefore, metamorphosed
into an unconditional one, is beyond question.<o:p></o:p>