THE TRUST BANK LIMITED vs. TYLA CONSTRUCTION WORKS [2010]DLHC3900

Date	2010-12-20
Suit No.	SUIT NO.BFS/4/10
Citation No.	[2010]DLHC3900

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

AGYEI BEDIAKO FOR SULLEY SAMBIAN FOR THE PLAINTIFF.

FRANCIS KOFFIE FOR THE DEFENDANT.

[2010]DLHC3900
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													<main id="main" class="content" style="min-height: 60rem" >THE TRUST BANK LIMITED<o:p></o:p>vs.<o:p></o:p>TYLA CONSTRUCTION WORKS<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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">

SUIT NO.BFS/4/10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 20TH
DECEMBER, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AGYEI BEDIAKO FOR SULLEY SAMBIAN
FOR THE PLAINTIFF.<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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<o:p></o:p>

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

</div>On 20th August 2009, the
plaintiff herein caused a writ of summons to be issued from the registry of
this court claiming an mount of GH¢13, 691.98 with interest thereon. Consent
judgment has since been entered against the defendant in the sum of GH¢6,877.15
exclusive of interest.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
outstanding balance of GH¢6814.83 and interest on the entire sum claimed on the
writ of summons are the subject matter of this trial. The specific issues set
down for trial are as follows:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">whether
 or not the plaintiff is entitled to interest on the admitted sum of GH¢
 6,877.15<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the plaintiff is entitled to an outstanding balance of GH¢6,814.83
 from June 2009 till date of final payment<o:p></o:p></li>
</ol>Since the 2nd
defendant has been non-suited, the third issue as to whether or not he is
personally liable for the debts of the 1st defendant has become redundant and
same is struck out<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Paragraphs
4, 5 and 6 of the plaintiff’s statement of claim sums up the plaintiff’s case
as follows:-<o:p></o:p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff
says that sometime in June 2007, it granted a temporary overdraft facility of
GH¢10,000.00 to the Defendant<o:p></o:p>(5)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff
says that the Defendant was supposed to liquidate the amount within three
months<o:p></o:p>(6)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff
says that even though the time for the redemption of the facility has since
elapsed, no efforts have been made by Defendant to repay despite repeated
demands.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In
its statement of defence filed on 23/09/09, the defendant denied paragraphs 4,5
and 6 of the plaintiff’s statement of claim, among others. By paragraph 5 of
the statement of defence, the defendant alleged that on 19th April
2007, it requested for an overdraft facility of GH¢5000 to enable it undertake
a project assigned to it by the Ghana @ 50 secretariat through Seedani Consult
to renovate some facilities at the Centre for National Culture, Kumasi. The
Defendant further alleged in paragraph 8 of its statement of defence&nbsp; that the request for the facility was
conditioned upon an interim payment certificate issued to it by the Seedani
Consult which said certificate has not been honoured&nbsp; to the knowledge of the plaintiff.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Mr.
Sefah Dankwa gave evidence on behalf of the bank. He stated that between April
and May 2007, the plaintiff allowed the defendant company to overdraw its
account. He further explained that the defendant issued cheques which were far
in excess of its balance but the bank honoured those cheques. Nine of these
cheques were admitted in evidence as exhibits A, A1-A8. A tenth cheque with a
face value of GH¢1000 was said to have been drawn on the bank’s Accra branch.
The total value of these cheques was GH¢7585.30 according to the bank’s
representative.&nbsp; The defendant’s
statement of accounts with the bank was also admitted in evidence as exhibit B.
He urged the court to order the defendant to pay the outstanding balance of
GH¢6,814.82 which is the subject matter of this trial.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whilst
under cross-examination, the bank’s representative conceded that the defendant
was not granted a facility of GH¢10,000 in June 2007. He however denied that
the defendant put in an application for an overdraft facility of GH¢5000.He
further denied that the loan was given to the defendant because the bank
expected that the interim payment certificate issued in favour of the defendant
would be honoured.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Awal
Baba Alargi gave evidence on behalf of the defendant company as its Managing
Director. Per his evidence, the defendant company requested for an overdraft
facility of GH¢5000 from the Plaintiff bank. According to him, the request was
in writing and it was honoured by the bank. He tendered photocopies of the
application and its annexure in evidence as exhibits 1,1A to 1B and explained
that the originals are in the custody of the bank. He conceded that his company
was allowed to overdraw the balance o</main>