GHANA CABLE CO. LTD vs. BARCLAYS BANK (GH.) LTD [2009]DLSC2483

Date	2009-11-25
Suit No.	CIVIL APPEAL. NO.J4/18/2008
Citation No.	[2009]DLSC2483

ATUGUBA JSC

ANSAH JSC

OWUSU (MS) JSC

ANIN YEBOAH JSC

BAFFOE-BONNIE JSC.

D. O. LAMPTEY FOR THE APPELLANT

CHARLES HAYIBOR FOR THE RESPONDENT

[2009]DLSC2483
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													<main id="main" class="content" style="min-height: 60rem" >GHANA CABLE CO. LTD<o:p></o:p>vs.<o:p></o:p>BARCLAYS BANK (GH.) LTD<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL. NO.J4/18/2008<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 25TH NOVEMBER, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;D. O. LAMPTEY FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CHARLES
HAYIBOR FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ATUGUBA
JSC, ANSAH JSC, OWUSU (MS) JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE JSC.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>ATUGUBA,
JSC:-<o:p></o:p>&nbsp;The Plaintiff per its Writ of Summons against
the defendant claimed the following:<o:p></o:p>“a.) Plaintiff Company’s claim against
defendant is for damages for the total collapse of <o:p></o:p>the plaintiff company’s business, loss
of good will loss of profits resulting from breach of contract by defendant for
unlawfully withdrawing credit facilities for plaintiff company under credit
facility agreement for making funds available for plaintiff company for
importation of much needed machinery and equipment, spare parts appliances etc,
for rehabilitation and repair of plaintiff company’s factory as manufacturers
of electric cables etc. and to enable plaintiff company remain in business.<o:p></o:p>b) Alternatively, for a declaration
that defendants are liable to make substantial funds available for plaintiff
company under credit facility agreement with defendants to enable plaintiff
company bounce back into business by rehabilitation, repairing, replacing
machinery and for&nbsp; importation of raw
materials and generally for&nbsp; doing all
acts that&nbsp; are necessary for plaintiff’s
company to commence production and remain in business.<o:p></o:p>c) Further or other reliefs as to this
Hon. Court may seem fit.”<o:p></o:p>The
crux of the plaintiff’s case is tersely put thus in its statement of case dated
23/5/2007: <o:p></o:p>“My Lords, the short point to be
determined in this appeal is whether Barclays Bank (Respondent Bank) was right
in refusing to grant Ghana Cable (Appellant Company) further credit facilities
despite the existence of a debenture dated 20th December 1979 under which the
appellant charged all its assets as security for payment of credit facilities
advanced to the appellant by respondent from time to time. See page 281 to 283
of the Record of Appeal and Ex 1 (the guarantee) executed by the appellant’s
Directors and Respondent on 20th May 1981: See page 290 of Record of Appeal.”<o:p></o:p>This
question was answered in the plaintiff’s favour by the trial High Court but was
reversed by the Court of Appeal.<o:p></o:p>The
plaintiff’s grievances with the decision of the Court of Appeal’s judgment may
be summarised as follows: By reason of the unlimited security by way of a
debenture dated 20/12/1979 and a guarantee dated 20/5/1981 in favour of the
defendant against all its monetary liabilities towards the latter the plaintiff
also had a corresponding unlimited right to monetary advances from it for the
purpose of operating its business properly. At times the contention is that by a
course of dealing between the parties since the execution of the said debenture
in which the defendant granted loan facilities to the plaintiff regularly it is
inconsistent therewith and indeed the defendant is thereby estopped from,
reneging on its obligation to sustain the same.<o:p></o:p>The
appellant quotes for its contention on estoppel, Habib Bank Ltd v Habib Bank AG
Zurich (1981) 1 WLR 1265 where Oliver J applied the test “Whether …it would be
unconscionable for a party to be permitted to deny that which, knowingly or
unknowingly he has allowed or encouraged another to assume to his detriment.”
This is a familiar principle. But on the facts of this case what has the
defendant knowingly or unknowingly allowed or encouraged the plaintiff to
assume to his detriment? The plaintiff’s answer to this is at p.6 of its
statement of case as follows:<o:p></o:p>“The various requests for credit
facilities made by the plaintiff/appellant Company to the defendant/Respondent
Bank which defendant/Respondent Bank granted/met pursuant to the terms and
conditions of the debenture see Ex AE1 to AE3 led the appellant Company into
believing that upon arrival of the machinery at the Tema Port the respondent
Bank would make the needed funds available for clearing the machinery etc, from
the port.”<o:p></o:p>Exhibits
AE1 to AE3 have been summarised by the Court of Appeal at p.478 of the record
of appeal as follows:<o:p></o:p>“1. Exhibit AE1 was for a Credit not
exceeding ¢15 million and was executed on 17th July 1985.<o:p></o:p>2. Exhibit AE2 was for a Credit not
exceeding ¢60 million was executed on 18th June 1987.<o:p></o:p>3. Exhibit AE3 was for a Credit not
exceeding ¢95 million and was executed on 17th May 1988.”<o:p></o:p>It
is to be observed that these exhibits relate to advances of credit for amounts
therein stated as not exceeding certain figures. Although these related to
stamping they also relate to ceilings of credit which ceilings are inconsistent
with the contention of the plaintiff that it was entitled to unlimited credit
for unlimited security.<o:p></o:p>