THE NATIONAL INVESTMENT BANK vs. MESSRS AGYAKOT CO. LTD. AND 2 OTHERS [2007]DLCA6601

Date	2007-11-01
Suit No.	H1/136/2006
Citation No.	[2007]DLCA6601

QUAYE JA

MARIAMA OWUSU JA

DUOSE JA

MR. KWASI AFRIFA FOR THE DEFENDANTS/APPELLANTS.

MR. YAW WIREDU PEPRAH FOR THE PLAINTIFF/RESPONDENT.

[2007]DLCA6601
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													<main id="main" class="content" style="min-height: 60rem" >THE NATIONAL
INVESTMENT BANK<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MESSRS
AGYAKOT CO. LTD. AND 2 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p><o:p>&nbsp;</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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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">H1/136/2006&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;DATE: 1ST
NOVEMBER, 2007<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. YAW WIREDU PEPRAH FOR
THE PLAINTIFF/RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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JA AND DUOSE, JA<o:p></o:p>

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</div>QUAYE,
JA <o:p></o:p>This
is an appeal from the ruling of the High Court, Sunyani delivered on 22nd March
2006. The appeal was filed on 23rd March 2006. The action was commenced in the
High Court, Sunyani. The plaintiff/respondent Bank, acting per its Board
Chairman, filed the writ on 1st September 2005 together with a statement of
claim. From the averments therein, the cause of action arose from the grant of
loan facilities of ¢200,000,000.00 (Two hundred million Cedis) by the
plaintiff/respondent Bank, to the 1st defendant, a private construction
company, based in Accra and Sunyani. The 2nd defendant is managing director of
the 1st defendant company. The 3rd defendant is a businessman resident in both
Accra and Sunyani. The 2nd and the 3rd defendants provided securities and or
guarantees to support the loan. As at the time the writ of summons was filed
the outstanding indebtedness of the defendants together with interest, had
risen to ¢13,933,316,048.78, that is more than thirteen billion cedis. <o:p></o:p>The
defendants responded to the suit by entering unconditional appearance on 6th
September 2005 through their Solicitor Otu-Essel K.F. Esq. of Asempa Chambers,
Sunyani, and following up on 8th September 2005 with the filing of a joint
statement of defence which virtually admitted the plaintiff Bank’s claim in its
entirety. I am unable to state emphatically that the notice of appearance was
accompanied with a memorandum of appearance. If there was, the memorandum is
not part of the appeal record. <o:p></o:p>The
plaintiff filed a motion for judgment on admission on the 4th October 2005; a
purported affidavit in opposition filed on behalf of the defendants on 11th
October 2005 in effect did not oppose the application. Paragraph 4 thereof
stated that: <o:p></o:p>“4
That I admit paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the affidavit in
support and say that we admit our indebtedness to the plaintiff.” <o:p></o:p>The
deponent to the said affidavit was one Samuel Osei who deposed to the affidavit
on behalf of the three defendants in his capacity as Accountant of the 1st
defendant. Thus on 9th November 2005, the trial court entered judgment, in
favour of the plaintiff Bank. In the said affidavit in opposition filed on 11th
October 2005, the deponent Samuel Osei made a serious misrepresentation of fact
to the court amounting to a lie. He perjured himself by claiming to be the 2nd
defendant although he was not. The next reaction of the defendants to the entry
of judgment was the filing by them of a motion for leave to pay the judgment
debt of ¢15,335,189,193.77 by monthly instalments. The application was opposed
by the plaintiff/judgment creditor. The application was not finally determined.
Then entered a new solicitor for the defendants Mr. Kwasi Afrifa of O &amp; A
Legal Consult, Kumasi who announced his entry by filing an application to set
aside the writ of summons, the service of the writ and entry of judgment. The
trial court gave its ruling in the matter on 22nd March 2006 after the issues
raised had been fully argued. The court concluded that “from the totality of
the affidavit evidence canvassed before me, coupled with the submission of
learned counsel of the parties and the relevant authorities, the exhibits I
think apart from vacating the judgment against the 2nd and 3rd Defendants, the
Defendants have not convinced me why the whole process should be nullified.
Unfortunately, the impression that the Defendants have created is that they
have been loaned precious but scarce public money which puts bread on their
table and then turn round to deliberately refuse to pay same. Application is
dismissed.” <o:p></o:p>The
appeal herein was filed on 23rd March 2006, that is one day after the ruling
dismissing the motion to set aside the writ of summons on ground of nullity. <o:p></o:p>About
seven different grounds of appeal were filed. They are:— <o:p></o:p>