SKYWAY TRAVELS LTD. vs. GHANA COMMERCIAL BANK [2003]DLCA6980

Date	2003-04-03
Suit No.	CA NO. 19/2002
Citation No.	[2003]DLCA6980

OMARI-SASU (PRESIDING)

ANSAH J. A.

ANINAKWAH J. A

B.W. TAMAKLOE FOR THE PLAINTIFFS/APPELLANTS

[2003]DLCA6980
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													<main id="main" class="content" style="min-height: 60rem" >SKYWAY TRAVELS LTD.<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>GHANA COMMERCIAL BANK<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO. 19/2002 &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; DATE: 3RD APRIL, 2003<o:p></o:p>

B.W. TAMAKLOE FOR THE
PLAINTIFFS/APPELLANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>&nbsp;OMARI-SASU (PRESIDING), ANSAH J. A., ANINAKWAH
J. A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ANINAKWAH
J. A.:<o:p></o:p>This
is an Appeal against the Judgment of His Lordship Justice A. A. Benin J.A.,
sitting as an additional High Court Judge-Accra-dated the 31st May 2000. <o:p></o:p>The
judgment dismissed the claim of the plaintiff/Appellant (hereinafter referred
to as the Plaintiff) and the Defendant/Respondent hereinafter referred to as
Defendants') Counterclaim against Messrs Isei Nsafoah and Sam Amfo Ayeh.<o:p></o:p>&nbsp;Entering the judgment the trial court allowed
the Defendant an amount of ¢2,137,185.86 as owed by the plaintiff to the Defendant.
<o:p></o:p>And
as against Messrs Isei Nsafoah and Sam Amfo Ayeh this is what the Court had to
say:— "But from whom is the Bank to recover its entitlement? The question
becomes necessary in view of the parties to the Counterclaim. The Bank averred
that Messrs Ayeh and Nsafoah, Managing Director and Director respectively of
Skyways executed a guarantee by which they bound themselves jointly and
severally to pay the Bank any sum that may become due and owing to the Bank by
Skyways. The answer in the defence to the Counterclaim was that 'there is no
merit whatever in the defendant's Counterclaim against the plaintiff in respect
of a guarantee which was executed by persons other than the plaintiff. At the
hearing it turned out that the guarantee that they executed in favour of the
Bank was in respect of a guarantee Skyways needed to enable it remain in
effective business; it was for a certain sum of money that the Bank guaranteed
skyways.<o:p></o:p>&nbsp;I think it had nothing to do with the
operation of its normal account with the Bank. In my view, the guarantee -
Exhibit 2 cannot be relied upon to saddle Messrs Isei Nsafoah and Ayeh with
responsibility for any debt owing by skyways outside the terms of the
guarantee. I therefore enter judgment for the Bank to recover the sum of
¢2,137,185.86, together with interest at the prevailing Bank rate (GCB rate),
from 1/11/93 to date of judgment, from Skyways. The rest of the claim and
Counterclaim are rejected." The Defendant Bank has not filed any cross
appeal and thereby deemed to have accepted the decision of the trial Court. <o:p></o:p>The
plaintiff's claims as indorsed on the Amended Writ of summons filed in April
1999, long after plaintiff's representative Mr. Sam Amfo Ayeh had given his
evidence in court on 16th May 1995 against the Defendant are for:-<o:p></o:p>&nbsp;"(a) ¢3,079,256.00 being the total sum
with which plaintiff's account for 1990 was fraudulently or negligently debited
by the defendant.<o:p></o:p>&nbsp;Interest on the said a ¢3,070,256.00 from the
30th of October, 1990 to the date of final payment at the current commercial
rate of interest. <o:p></o:p>¢17,053,120.00
being the total sum with which the plaintiff's Account for 1991 was
fraudulently or negligently debited by the Defendant. <o:p></o:p>Interest
on the said ¢17,053,120.00 from the 10th of December, 1991 to the date of final
payment at the current commercial rate of interest.<o:p></o:p>&nbsp;¢28,138,480.00 being the total sum with which
the Plaintiff's Account for 1992 was fraudulently or negligently debited by the
Defendant. <o:p></o:p>Interest
on the said ¢28,138,480.00 from the 16th of October, 1992 to the date of final payment
at the current commercial rate of interest. <o:p></o:p>¢75,528,800.00
being the total sum with which the plaintiff's Account for 1993 was
fraudulently or negligently debited by the Defendant.<o:p></o:p>&nbsp;Interest on the said ¢75,528,800.00 from the
4th of October, 1993 to the date of final payment at the current Commercial
rate of interest.<o:p></o:p>&nbsp;General damages for fraudulent breach of
contract.<o:p></o:p>&nbsp;The plaintiff's case is that it operated a
Current Account with the Defendant from 1977 to the 15th October, 1993. <o:p></o:p>In
or about October, 1993 the Defendant supplied to the plaintiff its Bank
Statements for 19</main>