PROCREDIT SAVINGS & LOANS COMPANY LIMITED vs. KWAKU DUODU & 3 OTHERS. [2013]DLHC3886

Date	2013-02-19
Suit No.	SUIT NO.BFS/95/12
Citation No.	[2013]DLHC3886

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

KWAME OWUSU SEKYERE FOR THE PLAINTIFF.

JAMES OSEI KOFI FOR THE DEFENDANT

[2013]DLHC3886
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													<main id="main" class="content" style="min-height: 60rem" >PROCREDIT SAVINGS &amp;
LOANS COMPANY LIMITED<o:p></o:p>vs.<o:p></o:p>KWAKU DUODU &amp; 3
OTHERS.<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/95/12&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: 19TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWAME OWUSU SEKYERE 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;
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</div>This is a Loan Recovery action in
which the Plaintiff Bank is claiming an amount of Forty Five Thousand Six
Hundred and Ninety Seven Ghana Cedis, Ninety Seven Pesewas being the
outstanding debt of the Defendants together with interest. <o:p></o:p><o:p>&nbsp;</o:p>The 4th Defendant was
never served with the writ of summons and statement of claim. Irrespective of
the fact that a lawyer purported to have entered appearance on behalf of all
the Defendants and proceeded to file a defence on their defence, no proceedings
can be taken against the 4th Defendant in the absence of proof of
service of the writ of summons and statement of claim on him.&nbsp; Also, this 4th Defendant never
appeared in court and it is doubtful whether the lawyer who purported to have
entered appearance on his behalf received instructions from him. Any
proceedings against him under these circumstances will be void. The Supreme
Court so held in the case of Barclays Bank v Ghana Cable (1998-99) SCGLR 1 as
follows:<o:p></o:p><o:p>&nbsp;</o:p>“ A court has generally no
jurisdiction to proceed against a party who has not been served. Accordingly,
when a defendant complains that he has not been served with a writ of summons
or any process which requires his personal service, the court is duty bound to
examine that complaint thoroughly and make a definitive finding irrespective of
whether there if proof of service or entry of appearance on behalf of that
defendant.”<o:p></o:p>&nbsp;And so, the trial proceeded against the 1st,
2nd , and 3rd Defendants only.<o:p></o:p><o:p>&nbsp;</o:p>The facts of the case are that on or
about 18th March, 2011, the Plaintiff granted a loan facility of
Twenty Five Thousand Ghana Cedis (GH¢25,000.00) and an overdraft facility of
Fifteen Thousand Ghana Cedis (GH¢15,000.00) to the 1st&nbsp; Defendant at an interest rate of 4.2% per
month, plus a penalty fee of 0.5% per day. The tenure of the loan facility was
eighteen months. A loan agreement was executed to that effect. The said
facilities were guaranteed by the other Defendants. At the time of instituting
this action, the Debit balances on the loan and overdraft facilities were
GH¢23, 617.73 and GH¢22,080.24 respectively.<o:p></o:p><o:p>&nbsp;</o:p>These allegations were flatly denied
by the 1st Defendant who put up a defence that when the Plaintiff
gave him the loan, he used it to purchase a Cargo truck to be used on
commercial basis and to the knowledge of the Plaintiff, it was involved in an
accident. Thus, the Plaintiff promised to stop calculating interest on the
outstanding balance but failed to do so.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff filed a reply and
joined issues with the Defendants. Issues were set down for trial as follows:<o:p></o:p><o:p>&nbsp;</o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether or not the Defendants’ are
indebted to the plaintiff in the sum of GHc 45, 697.97 or any part thereof?<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether or not the Plaintiff at any
point in time agreed to cease calculating interest on the loan?<o:p></o:p>