BARCLAYS BANK OF GHANA LTD. vs AKUAFO ADAMFO MARKETING CO. LTD., FINATRADE HOLDINGS SA and 3 ORS [2016]DLHC16223

BARCLAYS BANK OF GHANA LTD. vs AKUAFO ADAMFO MARKETING CO. LTD., FINATRADE HOL... [2016]DLHC16223

Date	2016-06-29
Suit No.	CM/0049/2012
Citation No.	[2016]DLHC16223

JUSTICE AKUA SARPOMAA AMOAH (MRS.)

MAXWELL KORBLA LOGAN

SIKA AGGRAY

KOJO ASARE-BOATENG

SAMUEL CODJOE

[2016]DLHC16223
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													<main id="main" class="content" style="min-height: 60rem" >BARCLAYS
BANK OF GHANA LTD.<o:p></o:p>(PLAINTIFF)vs<span lang="EN-GB" style="font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:
Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:&quot;Times New Roman&quot;;
mso-ansi-language:EN-GB"><o:p></o:p>AKUAFO ADAMFO MARKETING CO. LTD., FINATRADE HOLDINGS SA AND 3
ORS<o:p></o:p>(DEFENDANTS)[HIGH COURT OF
JUSTICE (COMMERCIAL DIVISION) ACCRA]<o:p></o:p>&nbsp;<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;">

CM/0049/2012&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;29TH
JUNE 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>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&nbsp;&nbsp;
<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>&nbsp;By the present motion,
Plaintiff/Applicant prays for Judgement 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>&nbsp;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>&nbsp;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>&nbsp;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>&nbsp;(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>&nbsp;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>&nbsp;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>&nbsp;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 </main>