BARCLAYS BANK OF GHANA LTD. vs. AKUAFO ADAMFO MARKETING CO. LTD., FINATRADE HOLDINGS SA, CONTINENTAL COMMODITIES TRADING CO. LTD., FINATRADING HOLDINGS LIMITED AND MR. NABIL MOUKARZEL [2016]DLHC11568

BARCLAYS BANK OF GHANA LTD. vs. AKUAFO ADAMFO MARKETING CO. LTD., FINATRADE HOL... [2016]DLHC11568

Date	2016-06-29
Suit No.	CM/0049/2012
Citation No.	[2016]DLHC11568

HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)

MAXWELL KORBLA LOGAN WITH SIKA AGGRAY FOR THE PLAINTIFF/APPLICANT PRESENT

KOJO ASARE-BOATENG HOLDING BRIEF FOR SAMUEL CODJOE FOR DEFENDANTS/RESPONDENTS PRESENT

[2016]DLHC11568
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													<main id="main" class="content" style="min-height: 60rem" >BARCLAYS BANK OF GHANA
LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>AKUAFO ADAMFO MARKETING
CO. LTD., FINATRADE HOLDINGS SA, CONTINENTAL COMMODITIES TRADING CO. LTD., FINATRADING
HOLDINGS LIMITED AND MR. NABIL MOUKARZEL<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>&nbsp;MAXWELL
KORBLA LOGAN WITH SIKA AGGRAY FOR&nbsp;&nbsp; THE
PLAINTIFF/APPLICANT PRESENT <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

KOJO
ASARE-BOATENG HOLDING BRIEF FOR SAMUEL CODJOE FOR DEFENDANTS/RESPONDENTS
PRESENT<o:p></o:p>

</div>CORAM<o:p></o:p>HER LADYSHIP JUSTICE
AKUA SARPOMAA AMOAH (MRS.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>By
the present motion, Plaintiff/Applicant prays for Judgment on Admission against
the Defendants/Respondents under Order 23 rules 1 and 6(2).&nbsp; The main grounds upon which it mounts the
application can be found particularly in paragraphs 4, 6, 7 and 9 of the
affidavit in support.&nbsp; <o:p></o:p>The
pith of Applicant’s application is that the Respondents by their defence filed
on the 8th day of February, 2016 admitted that the facility they took from
Applicant had fallen due and that they had defaulted on their repayment
obligations.&nbsp; Applicant submits further,
that a response to a “NOTICE TO ADMIT
DOCUMENTS “served on the Defendants by way of discoveries also admitted
every document mentioned in the said notice subject to the qualification that
Applicant had orally agreed with Respondents not to enforce its rights under a
prior written agreement entered into by the Parties. Counsel contends that in
the face of what he described as “clear and unequivocal admissions”, the
Defendants’ claim that the Applicant verbally promised not enforce its legal
rights pending the restructuring of the 1st Defendant, is completely untenable
in law. This, he reasoned, is because a written contract cannot be varied by a
verbal agreement. <o:p></o:p>Not
surprisingly, Respondents stoutly oppose the application. They contend in
paragraph 5 of their affidavit in opposition that, their Statement of Defence
expressly and unambiguously denies the averment made by the Applicant that the
facility fell due and that the Respondent had defaulted in their repayment
obligations.&nbsp; The Respondents admit in
paragraph 8 of their affidavit that the said credit facilities were granted
them but say that they have, based on Applicant’s promise to extend the time
for repayment of those facilities, taken irreversible steps at great cost to
them. They submit that they have commenced restructuring of the 1st defendant
based on the said promise and&nbsp; argue that
a grant of the instant application, will not only be detrimental to the
progress made so far in the restructuring excercise but will spell the collapse
of the 1st Defendant Company. <o:p></o:p>Now,
the Applicant brings this application under order 23 rule 1 and 6(2). Rule 6
(2), on which the application essentially rests states as follows:<o:p></o:p>(2)“Where
an admission of truth of a fact or authenticity of a document is made by a
party in a pleading or is made or deemed to be made by a Party in response to a
request to admit, any Party may apply by motion to the Court or to the judge
for such an order as the Party may be entitled to on admission without waiting
for a determination of any question between the Parties and the Court or the
Judge may make&nbsp; such order as is just.”<o:p></o:p>A
careful reading of the above rule, shows that it only applies when there is an
admission of the truth of a fact or the authenticity of a document by a Party
or, where a Party, by the nature of that Party’s response to a notice to admit,
is deemed to have admitted the truth of a fact or the authenticity of a
document.<o:p></o:p>Such
admission, as held in a good number of authorities, must be clear, unequivocal
and should admit of no controversy. SEE the cases of&nbsp; POMAA
V FOSUHENE (87-88)GLR 244 and ADJAVON V GHANA INDUSTRIAL HOLDING CORPORATION
(1980)GLR,135<o:p></o:p>In
their Statement of Defence, the Respondents, whilst admitting that they took
the facilities in question vehemently deny that the Applicant is entitled to
its claim, due to an unconditional promise it made to them, not to enforce its
rights until after the completion of the restructuring of 1st Defendant.
Counsel for Applicant however, contends that the Defendants by the text and
tenor of their Statement of Defence and by incorporation, their response to Applicant’s
Notice to admit, ought to be deemed to have clearly and unequivocally admitted
Plaintiff’s claims as parole evidence cannot be admitted to vary a written
agreement.&nbsp; <o:p></o:p>I
agree with Counsel for Applicant that as a general principle, parole evidence
will not be admissible to vary or contradict a written document.&nbsp; However as Counsel concedes, this legal
principle is subject to a number of exceptions.&nbsp;
Amongst these exceptions are cases where parole evidence is offered to
prove that the operation of an entire contract has been suspended until the
occurrence of some event.&nbsp; SEE THE CASE OF PYM V CAMPBELL
(1856)6ELLIS&amp;BLACKBURN 370.&nbsp; I
also note that&nbsp; even In the case of in RE KORANTENG&nbsp; ADDO V KORANTENG,[2005-2006]SCGLR 1039 on
which Counsel relies in support of his case, parole evidence was actually
admitted under Section 25(2) of NRCD 323 but only rejected by the Supreme Court
on the basis that defendant had been unable to establish his case by the said
evidence.<o:p></o:p>&nbsp;In my considered opinion, the mere fact of
Defendants admitting documents listed in Plaintiff’s ‘NOTICE TO ADMIT DOCUMENTS’, cannot be said to be or deemed an
unequivocal admission, in view of the express qualification that the said
documents remain unenforceable due to an existent promise not to enforce
same.&nbsp; I also do not think that
Defendants failure (deliberate or inadvertent) to respond to paragraphs 8 and 9
of the said notice amounts to a clear admission within the meaning order 23
rule 3(3).&nbsp;&nbsp; To my mind, in applying the
said rule, there is the need to consider the nature and substance of the entire
pleadings filed and not just an isolated paragraph or paragraphs. SEE THE NIGERIAN CASE OF KWARA HOTELS V MR
ISHOLA. {2012} F W L R (PT 135) PAGE 759@769.<o:p></o:p>&nbsp;My
underst</main>