ROBERT FRIMPONG NYANTAKYI vs. ABDUL HAMID SALAM [2017]DLCA5095

Date	2017-02-27
Suit No.	CIVIL APPEAL NO. H1/37/16
Citation No.	[2017]DLCA5095

HONYENUGA J.A. (PRESIDING)

GYAN J.A.

SUURBAAREH J.A.

MR. EDWARD OPPONG FOR THE PLAINTIFF/APPELLANT

MR. ADU YEBOAH FOR THE DEFENDANT/RESPONDENT

[2017]DLCA5095
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													<main id="main" class="content" style="min-height: 60rem" >ROBERT FRIMPONG NYANTAKYI<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ABDUL HAMID SALAM<o:p></o:p>(DEFENDANT/ RESPONDENT)<o:p></o:p>[COURT OF APPEAL, CAPE
COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO.&nbsp; H1/37/16&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 27TH
FEBRUARY, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. EDWARD OPPONG FOR THE PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. ADU YEBOAH FOR THE
DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HONYENUGA J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="text-align:center;line-height:
115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>HONYENUGA, J.A.<o:p></o:p>This appeal
is against the Ruling of the High Court, Cape Coast dated the 28th
day of July, 2015.&nbsp; In the said ruling,
the trial High Court dismissed the plaintiff/appellant’s (hereinafter called
the appellant) application for summary judgment under Order 14 rule 1 of the
High Court (Civil Procedure) Rules, 2004, (C.I. 47) as against the
defendant/respondent (hereinafter referred to as the respondent).<o:p></o:p><o:p>&nbsp;</o:p>The facts of
this appeal are that the appellant is a former employee of the Agricultural
Development Bank (ADB) and the respondent is a businessman in Cape Coast and a
shareholder of Ghambassad Company Limited.&nbsp;
The respondent was introduced to the appellant while an employee of ADB
in Cape Coast.&nbsp; The said Ghambassad
Company Limited had an account at the appellant’s ADB branch.&nbsp; Sometime in 2011, the respondent was
introduced to the appellant by Fred Agyemang that he needed a loan and
therefore he granted the respondent Ten Thousand Ghana Cedis
(GH¢10,000.00).&nbsp; Later, the Manager
granted Twenty Thousand Ghana Cedis (GH¢20,000.00) to the respondent as a loan
until his company’s loan facility was processed.&nbsp; The appellant therefore granted a total of
GH¢40,000.00 loan facility to the respondent to be repaid by the end of
February 2012.&nbsp; However, by the end of
March 2013, the respondent refunded GH¢4,000.00 leaving a balance of
GH¢36,000.00 to be paid by the end of May 2013.&nbsp;
The respondent also agreed to pay an interest of GH¢2.000.00 every month
from June 2012 should he fail to pay the outstanding balance of
GH¢36,000.00.&nbsp; The respondent later made
a part-payment of GH¢15,000.00 into the appellant’s account but that money was
found by the ADB to have been stolen by the Manager and given to the
respondent.&nbsp; The appellant was rather
made to refund the money to the ADB.&nbsp;
Subsequent demand for the repayment of the loan of GH¢36,000.00 was met
with a response from the respondent that he would only repay the loan when the
ADB refunded monies embezzled from Ghambassad Company Limited account by some
staff of the Bank.&nbsp; Unable to bear the
response from the respondent, the appellant caused a writ of summons which was
accompanied with a statement of claim which were later amended to be issued
against the respondent, claiming as follows:-<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery
of an amount of GH¢36,000.00 being an outstanding balance of a loan plaintiff
granted to the defendant.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
interest on the outstanding balance as in ‘a’ above at the prevailing bank rate
from 1st March 2012 till 31st May 2012, and then an
interest of GH¢2,000.00 per month on the outstanding balance as in ‘a’ above
from the 1st June 2012 till date of full and final payment.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any
other just and equitable relief.<o:p></o:p>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Cost”.<o:p></o:p>The
respondent entered appearance and filed a Statement of Defence which was later
amended. The appellant also filed a Reply and stated inter alia that the
respondent does not have a personal account with the Bank but that he is only a
signatory to a company account.&nbsp; At the
application for Directions stage, the following issues were listed and agreed:-<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not plaintiff gave an amount of GH¢40,000.00 of which defendant paid an
amount of GH¢4,000.00 leaving an outstanding balance of GH¢36,000.00.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not defendant promised to pay plaintiff interest on the amount owed, should
defendant fail to pay on schedule.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not monies plaintiff gave to defendant were taken from defendant’s own
account with Agricultural Development Bank.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not plaintiff was dismissed from his appointment with Agricultural
Development Bank due to his involvement in fraud perpetrated on defendant by
officials of the Bank.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not plaintiff is entitled to his claims.<o:p></o:p>