FIRST ATLANTIC BANK LIMITED vs. LOGWOOD INDUSTRIES LIMITED & ANOR [2016]DLHC3777

Date	2016-01-29
Suit No.	SUIT NO.BFS/150/13
Citation No.	[2016]DLHC3777

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

KAMIL MOHAMMED IDDRISU FOR PLAINTIFF.

E. N. POKU FOR DEFENDANT.

[2016]DLHC3777
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">FIRST
ATLANTIC BANK LIMITED<o:p></o:p></a>vs.<o:p></o:p>LOGWOOD INDUSTRIES LIMITED &amp; ANOR<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/150/13&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;&nbsp;DATE: 29TH JANUARY, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KAMIL
MOHAMMED IDDRISU 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">

E. N. POKU FOR DEFENDANT.<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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JUDGMENT<o:p></o:p>

</div>First Atlantic Bank
Limited, formerly known as First Atlantic Merchant Bank Limited, instituted the
instant action against Logwood Industries Ltd and K.N. Poku, its Managing
Director, claiming an amount of three hundred and thirteen thousand, ninety-six
Ghana Cedis and eighty -three pesewas ( GH¢ 313, 096.83). Per the endorsement
on its amended writ of summons and statement of claim filed on 18/11/2014, the
Plaintiff sought to recover this amount plus interest at the bank's prevailing
lending rate from 2nd February, 2013 to the date of full and final
payment. <o:p></o:p>It is the Plaintiff's case
that it granted an overdraft facility in the sum of Seventy thousand Ghana
Cedis (GH¢70,000.00) ,previously&nbsp; seven
hundred million Cedis (¢700,000,000.00), to the 1st &nbsp;Defendant by a facility letter dated 31st
&nbsp;May, 2005. The 1st Defendant
run into excesses which the Plaintiff agreed to operate as additional
facilities on the same terms as the principal facility.&nbsp; The facility was to be repaid in May, 2006
and was secured by a Negotiable Certificate of Deposit of GH¢ 50,000.00
standing in the name of the 2nd &nbsp;Defendant as well as fixed charge over a
caterpillar 528 Skidder worth GH¢ 80,000.00. The 1st Defendant
defaulted in repayment and after a demand notice had been served on the
Company, it agreed to settle its indebtedness in monthly installment payments but
again defaulted after making three payments. The accumulated interests have
swelled up the Defendants indebtedness as claimed. <o:p></o:p>The Defendants case is
encapsulated in a 11-paragraphed amended statement of defence filed on 09/12/12
wherein they admitted&nbsp; that the 1st
Defendant took an overdraft facility of GH¢70,000.00&nbsp; as claimed by the Plaintiff and which the 2nd
Defendant Secured with a 90 day fixed deposit investment of GH¢50,000.00. The
Defendants' alleged that there were negotiations with the 1st Defendant
to settle the matter, but the Plaintiff rejected the same. Nevertheless, the
1st Defendant cleared the outstanding sum by sending cheques to the Plaintiff
for payment. The Defendants&nbsp; further
denied the additional facilities said to have been taken by the 1st Defendant
and alleged that the 90 day fixed deposit which attracted interest of 28% is
still with the Plaintiff. Since the Debt arose over six years ago, the
Defendants averred that the same is statute barred.<o:p></o:p>Therefore, the 2nd
Defendant counterclaimed against the Plaintiff for the sum of GH¢693,300.91 and
interest thereon at the Bank's prevailing lending rate from 1st November,
2014 to date of payment. The 2nd Defendant also sought an order for
the release of the said monies to the 2nd Defendant.<o:p></o:p>In its Reply and Defence
to counterclaim, the Plaintiff maintained that the said investment of the 2nd
Defendant which was first booked in April, 2005 attracted interest at the rate
of 13.7%and re-invested at prevailing rates every 90 days but in October, 2006,
the same was liquidated into the account of the 1st Defendant to
defray part of its indebtedness since it had failed to honour its payment
obligations. Hence, the 2nd Defendant's counterclaim has no merit.<o:p></o:p>In answer to the
allegation that the action is statute barred, the Plaintiff stated that in view
of the acknowledgments and settlement offers made between the parties, any
perceived right under the Limitations Act has been overtaken by those events. <o:p></o:p>The issues set down for determination
and other issues arising from the pleadings &nbsp;are:<o:p></o:p>1.<span style="font-style: normal; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the Plaintiff is
entitled to its claim?<o:p></o:p>2.<span</main>