FORMS CAPITAL LTD vs. FREEMAN GT COMPANY LTD. AND OTHER [2016]DLHC3585

Date	2016-03-21
Suit No.	SUIT NO.RPC/249/2014
Citation No.	[2016]DLHC3585

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2016]DLHC3585
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">FORMS
CAPITAL LTD<o:p></o:p></a>vs.<o:p></o:p>FREEMAN GT COMPANY LTD. AND OTHER<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<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.RPC/249/2014&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST MARCH, 2016 <o:p></o:p>

</div>CORAM:<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">

HIS LORDSHIP ERIC KYEI BAFFOUR 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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JUDGEMENT<o:p></o:p>

</div>The liability of the first three defendants in this
suit has already been settled by the court upon an application for judgment in
default of defence mounted by the Plaintiff. The court differently constituted granted
the prayer of the Plaintiff in terms of the following reliefs endorsed on the
Plaintiff’s writ of summons:<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
mso-ansi-language:EN-US">a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Payment of the sum of Twenty Four Thousand, Five Hundred
and Fifty Nine Ghana Cedis (Gh¢24.559.00) being sum outstanding on the loan as
at 31st May, 2014 on loan granted to the 1st defendant
repayment of which was guaranteed by the 2nd and 3rd
defendants.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
mso-ansi-language:EN-US">b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Payment of the sum of Gh¢24.899.00 being sum
outstanding on the second loan as at 6th June, 2014 on loan granted
the 1st defendant repayment of which was guaranteed by the 2nd
and 3rd defendants.<o:p></o:p>e. Interest on the
1st loan at the contractual rate of ten percent (10%) per month from
1st June, 2014 to date of final payment<o:p></o:p>f. Interest on the
second loan at the contractual rate of ten percent (10%) per month from 7th
of June, 2014 to date of final payment.<o:p></o:p>g. Cost of a full
recovery basis.<o:p></o:p><o:p>&nbsp;</o:p>What is left in
this suit for determination is relief c. on the endorsement on the writ of
summons and which is stated as follows:<o:p></o:p><o:p>&nbsp;</o:p>“A declaration that the Plaintiff relied on the
undertaking of the 4th defendant to pay the contract sum in joint
names of the Plaintiff and the 1st defendant in taking a decision to
grant the loan to the 1st defendant”.<o:p></o:p><o:p>&nbsp;</o:p>The background to
the claim of the Plaintiff can be discerned from the 22 paragraph statement of
claim that accompanied the issuance of the writ. Plaintiff claims that per a
facility letter of 21st of August, 2012 it advanced a loan of
Gh¢25.000.00 to the 1st defendant for the purposes of executing a
contract awarded by the 4th defendant to the 1st
defendant with the repayment period being three months. According to the
Plaintiff the loan should have been repaid by 20th of November,
2012.<o:p></o:p>The 4th
defendant undertook to pay the contract sum in the joint names of 1st
defendant and the Plaintiff and it was that undertaking relied on by the
Plaintiff that informed its decision to award the contract to the 1st
defendant.<o:p></o:p>To plaintiff, 1st
defendant later requested for a further loan to enable it complete the contract
4th defendant awarded it and it did accede to that request and made
a further advancement of Gh¢15.000.00 to the 1st defendant. In
Plaintiff’s reckoning the 1st defendant has failed to make good its
repayment terms and it has come to its notice that 4th defendant has
gone ahead to make payments not in terms of the undertaking it gave to make payment
in the joint names but has reneged and made it to the 1st defendant.
And havi</main>