AGRICULTURAL DEVELOPMENT BANK vs. JOSEPH KODUA COMPANY & 2 ORS. [2016]DLHC3766

Date	2016-10-18
Suit No.	SUIT NO.BFS/170/15
Citation No.	[2016]DLHC3766

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

K.P. NKANSAH FOR PLAINTIFF

IBRAHIM ANYARS BAWAH FOR DEFENDANT

[2016]DLHC3766
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">AGRICULTURAL
DEVELOPMENT BANK<o:p></o:p></a>vs.<o:p></o:p>JOSEPH KODUA COMPANY &amp; 2 ORS.<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/170/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 18th
OCTOBER, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>K.P.
NKANSAH FOR 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">

IBRAHIM ANYARS BAWAH FOR DEFENDANT <o:p></o:p>

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF
THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>This&nbsp; is a debt recovery&nbsp; action&nbsp;
in which the Plaintiff bank seeks to recover an amount of GH¢ 390,
275.56&nbsp; arising from unpaid credit
facility granted by the plaintiff to the 1st &nbsp;Defendant and interest thereon from 1/11/2014
to the date of final payment. Details of the grant of the credit facility and
the events leading to the default are adequately captured in the Plaintiff's statement
of claim filed on 28/01/15.<o:p></o:p>The
1st and 2nd defendants caused their solicitor to enter appearance on
their behalf on 27/02/2015 and he proceeded to file a defence. However, the 3rd
Defendant was served with the writ of summons and statement of claim by
substituted service by an order of this court dated 18/03/2016 but he failed to
enter appearance. <o:p></o:p>After
the pre-trial stage, the court gave further directions as to the filing of
witness statements.&nbsp; Counsel for the 1st
and 2nd Defendants who was not in court at the time orders were made
for the filing of witness statements was duly served with the court notes on
28/01/2016 (see affidavit of service sworn on 28/01/2016). Subsequently, the Plaintiff's
witness statement and numerous hearing notices were served on their counsel to
attend Case Management Conference but he elected not to come to court and his
clients did not also file their witness statements. <o:p></o:p>At
the case management stage, the defence filed by the 1st and 2nd
Defendants was struck out under Order 32 rule 7A (3) (b) of C.I. 47 as amended
by C.I. 87.&nbsp; Thereafter, the Plaintiff was
called upon to prove its claim against the 1st and 2nd
Defendants. The sole issue set down for trial is whether or not the Plaintiff is
entitled to its claim.<o:p></o:p>At
the trial, the Relationship Manager of the Plaintiff/bank, Shirley Wiafe
Ameyaw, testified on its behalf. She relied on her witness statement filed on
18/1/16. In her testimony, the Plaintiff's representative said the bank
extended an overdraft facility (O/D) of GH¢ 200,000.00 and two term loans
totaling GH¢ 187,802.80 at an interest rate of 39.92% per annum to the 1st
&nbsp;Defendant. In respect of the repayment
of those credit facilities, she told the court that the O/D was to be repaid
within a period of twelve months and the two term loans of GH¢ 160,000.00 and
GH¢ 27,802.80 were to be liquidated within 24 and 9 months respectively. These
terms, according to the witness, were accepted by the 1st Defendant acting
through its Managing Director, the 2nd &nbsp;Defendant. Continuing, the witness indicated
that the 2nd&nbsp; and 3rd
&nbsp;Defendants guaranteed&nbsp; the repayment of the credit facilities by
executing a mortgage document and contract of indemnity in favour of the Plaintiff.
She tendered copies of the facilities sanctions memo which looks more or less
like the usual facility letter, the acceptance by the 1st Defendant,
the mortgage document and contract of guarantee as exhibits A, B, C and D.&nbsp; <o:p></o:p>Concluding,
the witness stressed that as at 31/10/2014, the total indebtedness of the Defendants
stood at GH¢ 390, 275.56 as evidenced by copies of the Statement of
Accounts&nbsp; attached as exhibits E series. <o:p></o:p>Indeed,
the exhibits tendered by the Plaintiff's representative give flesh to the
averments contained in the Plaintiff's statement of claim which were repeated
on oath. I however notice from exhibit A that in addition to the O/D and two
term loans in contention, the Plaintiff was also granted a Bank Guarantee of GH¢
130,00.00. It may well be&nbsp; that, Bank
Guarantee was not utilized and since the Plaintiff's is silent on the said
guarantee and the Defendants have also not made any reference to it , &nbsp;I am also entitled to ignore it. <o:p></o:p>The
facilities in issue were accepted in unequivocal terms by the 2nd &nbsp;Defendant&nbsp;
on the face of exhibit B written on the letter head of the 1st
&nbsp;Defendant and signed by the 2nd
&nbsp;Defendant.&nbsp; Exhibit B is dated 25/03/2014 and it reads:<o:p></o:p>LETTER OF UNDERTAKING<o:p></o:p>I
am pleased to inform you that I accept the terms and conditions of the credit
facilities granted to us to augment my working capital in the sale of
consumable products.<o:p></o:p>