PRUDENTIAL BANK LTD. vs. TELECITY COMPANY LTD AND ANOTHER [2001]DLCA7471

Date	2001-02-08
Suit No.	CIVIL APPEAL NO.: CA/100/2000
Citation No.	[2001]DLCA7471

BROBBEY JA

(PRESIDING) AFREH JA.

BADDOO JA.

[2001]DLCA7471
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													<main id="main" class="content" style="min-height: 60rem" >PRUDENTIAL BANK LTD.<o:p></o:p>vs.<o:p></o:p>TELECITY COMPANY LTD AND ANOTHER<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: CA/100/2000&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
8TH FEBRUARY, 2001.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 2.25pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">CORAM:&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;BROBBEY JA, (PRESIDING) AFREH JA., BADDOO JA.<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>BROBBEY
J.A.: <o:p></o:p>This
is an appeal against the decision of an Accra High Court in which summary
judgment was given against the defendant for certain sums of moneys in both
Cedis and American Dollars which were owed to the plaintiff. The defendant is
described as the appellant herein and the plaintiff as the respondent. <o:p></o:p>The
grounds of appeal filed by the appellants were that <o:p></o:p>(a)
"The High Court Judge erred by granting the summons for summary judgment
since the pleadings were fraught with triable issues not amenable to summary
judgment. <o:p></o:p>(b)
Additional grounds may be filed upon the receipt of a certified copy of the
judgment." <o:p></o:p>No
additional grounds were filed. The appeal was therefore argued on the basis of
only one ground.<o:p></o:p>&nbsp;In sum, the basic issues between the parties
were as follows: the respondent claimed that it was owed moneys by the
appellant. The amounts owed were in two different currencies of US Dollars and
Ghana Cedis. According to the respondent, both sums remained unpaid as at the
time the writ of summons was issued against the appellant for them. <o:p></o:p>The
appellant's answer to the Dollar claim was that he had fully paid that amount.
He supported that claim with exhibit 3, a statement of account which clearly
indicated that the appellant owed nothing on the Dollar account.<o:p></o:p>&nbsp;In reply, the respondent averred that the
appellant owed on both the Dollar and Cedi account. When the appellant paid
some sixty thousand Dollars into the Dollar account, the respondent changed
that amount into Cedis and used it to pay off the Cedi amount owed. From the
wording of exhibit F, a letter written by the respondent to the appellant, it
is apparent that the respondent converted the Dollars into Cedis at its own
exchange rate and used the money to pay the Cedi debt before informing the
appellant of its action.<o:p></o:p>&nbsp;The appellant disputed the authority of the
respondent to use the Dollar amount to pay off the Cedi debt. That alone raised
a triable issue which was not capable of being resolved by summary judgment.
The use of summary proceedings to resolve that issue was wrong.<o:p></o:p>&nbsp;There are a number of issues which arise from
the use of the Dollars to pay off the Cedi debt. These include the issues of
set off available to the respondents, the mandate which the respondent had in
the management of the appellant's accounts and even the rate of the Cedi to the
Dollar used by the respondent in converting the Dollar into Cedis. These cannot
be commented upon now since the case will be remitted to the trial court for
re-trial on the claim for the debt owed in Dollars. They however create the
unmistakable impression that there were triable issues which had to be
investigated before final conclusion on liability for the debt could be
reached. The rule was summed up in the House of Lords case of Jacobs v. Booths Distillery Co.
(1901) 85 LT 262 as follows;<o:p></o:p>&nbsp;"Where there is a triable issue, though
it may appear that the defence is not likely to succeed, the defendant should
not be shut out from laying his defence before the court either by having
judgment entered against him or by being put under terms to pay money into
court as a condition of obtaining leave to defend the action."<o:p></o:p>&nbsp;The Dollar aspect of the case did not lend
itself to the entry of summary judgment. <o:p></o:p>The
appeal will consequently be allowed in part, that is, in respect of the claim
for the Dollar amount owed to the respondent. <o:p></o:p>The
claim for the Cedi amount raised different considerations. The appellant
admitted owing the amount claimed. His defence to the claim was that before he
was granted that amount which resulted in the Cedi debt, the Deputy Managing
Director of the respondent bank demanded a loan from him. That resulted in the
payment of forty million Cedis being given to that deputy director. It was part
of the appellant's case that that amount given to the deputy director had to be
paid before he would be obliged to pay his own debt owed to the bank on the
Cedi account. <o:p></o:p>That
argument did not find favor with the trial judge. She therefore entered summary
judgment on the Cedi debt against the appellant. <o:p></o:p>For
at least four reasons, the trial judge was right in entering judgment against
the appellant. The reasons are as follows; Firstly, the appellant knew that he
had to borrow money from the respondent, a bank, which is a limited liability
company with a distinct legal entity; Mr Sekyere Abankwa who allegedly demanded
the money before the appellant would be given the money was not the lender who
lent him the money which has been described as overdraft facility from the
bank. Secondly, it appeared that Mr. Abankwa was not served with the
proceedings for the court to assess his </main>