AGRICULTURAL DEVELOPMENT BANK (PLAINTIFFS) vs. FEANZA INDUSTRIES LTD. AND DR. KAKU KYIAMA (DEFENDANTS) [2010]DLHC7376

AGRICULTURAL DEVELOPMENT BANK (PLAINTIFFS) vs. FEANZA INDUSTRIES LTD. AND DR. KA... [2010]DLHC7376

Date	2010-07-20
Suit No.	SUIT NO. E2/92/07
Citation No.	[2010]DLHC7376

HIS LORDSHIP NICHOLAS CHARLES A. AGBEVOR J.

MR. EDWARD ANOKYE FOR THE PLAINTIFF

MR. ERICKSON ABAKAH FOR THE DEFENDANT

[2010]DLHC7376
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >AGRICULTURAL DEVELOPMENT BANK<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>FEANZA INDUSTRIES LTD. AND DR. KAKU KYIAMA<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, SEKONDI]<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">

</div>COUNSEL:<o:p></o:p>MR.
EDWARD ANOKYE 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">

MR. ERICKSON ABAKAH FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP NICHOLAS CHARLES A. AGBEVOR J. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
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>This
is an action for the recovery of the outstanding balance on a loan and working
capital granted the 1st defendant by plaintiff. The plaintiff is also seeking
for interest at the rate of 15% per annum on the unpaid sum from 7th January,
2007 to date of final payment, cost and any other reliefs that this Court may
deem fit. <o:p></o:p>The
Plaintiff is a Bank registered under the laws of Ghana as well as the 1st
Defendant Company. On the 30th day of June, 2005, the 1st Defendant Company
applied for and was granted two facilities of a loan of ¢1,490.000.00 and a
working capital ¢2,300,000,000.00 to a total of ¢3,790,000,000.00 on terms
including an interest rate of 15% per annum subject to Change without notice. <o:p></o:p>A
condition of these facilities is that the repayment shall be spread over thirty
months commencing six months after the disbursement of the facilities. The
financial facilities were secured by legal mortgage of property situated at
Community ‘6’, Tema owned by the 2nd Defendant and the factory and equipment in
the nature of plant and machinery of the 1st Defendant Company. <o:p></o:p>The
1st Defendant Company has failed to honour the repayment and have defaulted on
payment. The indebtedness of the Defendants as at 7th January, 2007 totalled
¢5,758,306,112.19 and continues to attract interest at 15% per annum. <o:p></o:p>On
the 4th day of July, 2007, the Plaintiff Bank moved this Court to enter a final
judgment in default of appearance. By leave of this Court however, the judgment
was set aside allowing the Defendants to file appearance on the 17th February,
2008 and to defend the action. <o:p></o:p>In
their Statement of Defence, the Defendants admit they were granted a total
credit facility of ¢3,790,000,000.00 at various times between September, 2003
and 30th June, 2005 secured by the legal mortgage enumerated by Plaintiff Bank.
Defendants deny the agreed interest rate was 15% and that it was rather 12½%
per annum. <o:p></o:p>It
is their averment that out of the total facility granted them, a total of
¢310,000,000.00 was not utilized and also that the Defendants have made various
refunds to a total of ¢2,115,614,351.74 out of the facility utilized. <o:p></o:p>It
is their further averment that there was no agreement on the 30 months
installment payments after six months of disbursement of the facility. It is
therefore, their claim that it is the Plaintiffs who breached the agreement to
provide sufficient working capital for 1st Defendant’s business and that this
breach run down the 1st Defendant's business resulting in Defendants' failure
to meet obligations of order by their foreign customers and revenue. The
Defendants therefore say that until they go into account, they cannot tell
their total indebtedness. <o:p></o:p>In
their reply to defendant's Defence, Plaintiff joins issue with the Defendants'
defence except on admitted issues. <o:p></o:p>In
further reply, plaintiff says that between 2003 and 2005, the existing term
loan of ¢1,490,000,000.00, existing working capital of ¢700,000,000.00 and
supplementary working capital from EDIF of ¢1,600,000,000.00 were consolidated
and approved in June, 2005. <o:p></o:p>It
is their further reply that it was agreed that the total principal sum was to
be repaid as follows:— <o:p></o:p>1.
First six months - moratorium <o:p></o:p>2.
Month 7 to 8 - ¢120,000,000.00 per month <o:p></o:p>3.
Month 9 to 31 - ¢150,000,00.00 per month <o:p></o:p>4.
Month 32 - ¢100,000,000.00 <o:p></o:p>The
Plaintiffs further say that the interest rate was subject to change without
notice. <o:p></o:p>At
the close of pleadings, the following issues were set down for determination:— <o:p></o:p>