NDK FINANCIAL SERVICES LTD. vs. CLICK GLOBAL LIMITED, DR. ISAAC F. AMPOFO AND GHANA COCOA BOARD [2015]DLCA6541

NDK FINANCIAL SERVICES LTD. vs. CLICK GLOBAL LIMITED, DR. ISAAC F. AMPOFO AND GH... [2015]DLCA6541

Date	2015-06-04
Suit No.	CIVIL APPEAL NO. H1/55/2015
Citation No.	[2015]DLCA6541

MARFUL-SAU JA (PRESIDING)

ADUAMA OSEI JA

MENSAH JA

MR. PETER O. ASAMOAH FOR PLAINTIFF/APPELLANT

MR. CHARLES AMENYOGLO WITH GEORGE LAING FOR 3RD DEFENDANT/ RESPONDENT

[2015]DLCA6541
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													<main id="main" class="content" style="min-height: 60rem" >NDK
FINANCIAL SERVICES LTD.<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>CLICK GLOBAL
LIMITED, DR. ISAAC F. AMPOFO AND GHANA COCOA BOARD<o:p></o:p>(DEFENDANTS)<o:p></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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. H1/55/2015&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: 4TH JUNE, 2015<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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GEORGE LAING FOR 3RD DEFENDANT/ RESPONDENT
<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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ADUAMA OSEI, JA AND MENSAH, JA<o:p></o:p>

</div>ADUAMA
OSEI, JA <o:p></o:p>In
this judgment, the Plaintiff/Appellant will be called "the
Appellant", while the 3rd Defendant/ Respondent is called "the
Respondent". The 1st and 2nd Defendants will continue to be so called. <o:p></o:p>By
a writ of summons issued in the Commercial Division of the High Court, Accra,
on the 3rd of December, 2012, the Appellant claimed against the 1st and 2nd
Defendants and the Respondent payment of the sum of GH¢401,792.02, plus
interest, costs and "any further or other reliefs". <o:p></o:p>In
the statement of claim that accompanied the writ of summons, the Appellant
explained that the said sum of GH¢401,792.02 was the amount of the 1st
Defendant’s indebtedness to it arising out of a credit facility it had granted
to the 1st Defendant under a loan agreement dated the 27th of May, 2011. The
2nd Defendant had been made a party to the action by virtue of a personal
guarantee he had executed in relation to the credit facility, and the
Respondent had been made a party because, as the Appellant contended in the
statement of claim, it advanced the credit facility to the 1st Defendant on the
basis of two letters dated the 10th and 24th of May, 2011 respectively by which
the Respondent had informed the Appellant that a sum of US$151,806.46 was due
from it to the 1st Defendant in September – October, 2011 and that it would
effect payment of the said sum in the joint names of the Appellant and the 1st
Defendant. <o:p></o:p>Beyond
the pleaded claim against the Respondent, Counsel for the Appellant, in his
cross-examination of the Respondent's witness, alleged misrepresentation
against the Respondent and proceeded in his written address to invite the trial
Court to hold the Respondent liable to compensate the Appellant for any damage
suffered by the Appellant as a result of the alleged misrepresentation. <o:p></o:p>On
their part, the 1st and 2nd Defendants, in their statement of defence, admitted
the debt alleged by the Appellant. They however contended that there was an
underlying contract between the 1st Defendant and the Respondent by which the
Respondent bound itself to effect payment of the said debt. They also averred
that there was an internet connectivity services agreement between them and the
Respondent and there was an understanding that the said agreement would not be
unreasonably, unlawfully and arbitrarily terminated by the Respondent. They
alleged that the Respondent had unreasonably, unlawfully and arbitrarily
terminated the agreement and their indebtedness to the Appellant had arisen
because of the Respondent’s breach of the two agreements. The 1st and 2nd
Defendants' contention was that the Respondent was in the circumstance bound to
indemnify them and settle their liabilities to the Appellant. On the basis of
the above, the 1st and 2nd Defendants counterclaimed against the Respondent
for, among other reliefs, an order compelling the Respondent to indemnify the
1st Defendant for its "liability under the Plaintiff’s statement of claim
by reason of its unlawful, unreasonable and arbitrary breach of the two
contracts aforesaid". <o:p></o:p>In
its judgment dated the 14th of April, 2014, however, while granting relief to
the Appellant against the 1st and 2nd Defendants jointly and severally for the
sum of GH¢401,792.02, the trial Court rejected the respective claims of the
Appellant and the 1st and 2nd Defendants against the Respondent. And the appeal
in which we give this judgment has been filed because the Appellant is
dissatisfied with the judgment of the trial Court. The 1st and 2nd Defendants
have not filed any appeal. <o:p></o:p>The
judgment of the trial Court is at page 318 to page 347 of the Appeal Record,
and the Notice of Appeal is at pages 354 and 355 of the said Record. The
grounds of appeal as contained in the Notice of Appeal are as follows: <o:p></o:p>"a.
The learned Judge erred when he held that Exhibits 'G' and 'H' are mutually
exclusive and could not be construed together. <o:p></o:p><</main>