AGRICULTURAL DEVELOPMENT BANK vs. ALTIMATE AGROCHEMICAL CO. AND 2 OTHERS [2017]DLHC3460

Date	2017-05-31
Suit No.	SUIT NO. CM/BFS/0363/16
Citation No.	[2017]DLHC3460

GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT

BANNERMAN WILLIAMS JNR FOR PLAINTIFF

MICHELLE AKUFFO FOR DEFENDANTS

[2017]DLHC3460
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													<main id="main" class="content" style="min-height: 60rem" >AGRICULTURAL DEVELOPMENT
BANK<o:p></o:p>vs.<o:p></o:p>ALTIMATE AGROCHEMICAL
CO. AND 2 OTHERS<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p>SUIT NO. CM/BFS/0363/16&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;31ST
MAY, 2017<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>COUNSEL:<o:p></o:p>BANNERMAN WILLIAMS JNR FOR PLAINTIFF <o:p></o:p>MICHELLE AKUFFO FOR DEFENDANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:<o:p></o:p>GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>JUDGMENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The plaintiff’s claim is for the recovery of the sum of GHS
685,045.72 from the defendants, jointly and severally, with interest on the
said sum at the rate of 40% per annum from the 11th May 2016 till
date of final payment. The plaintiff further asked for the judicial sale of the
mortgaged properties in satisfaction of the judgment debt. <o:p></o:p><o:p>&nbsp;</o:p>The case of the plaintiff is that at the request of the 1st defendant
on or about the 7th May 2015, it granted the 1st defendant
a short term revolving loan of GHS408,816.00 and an overdraft facility of
GHS50,000.00. It is further the case of the plaintiff that these facilities
granted to the 1st defendant together with interest were to be
repaid within 180 days although the facilities had a tenor of 12 months. <o:p></o:p><o:p>&nbsp;</o:p>It is further contended by the plaintiff that the facilities
granted to the 1st defendant were secured by the 2nd and
3rd defendants jointly and severally with their property at
Amanfroko – Oyarifa and Somanya. It is further the contention of the plaintiff
that the 1st defendant defaulted in the repayment of the facilities
granted to it. Plaintiff contends further that it was agreed between the
parties that in the event of default of payment, the outstanding amount on the
facilities shall attract interest at the rate of 40% per annum. The plaintiff’s
case is that as at 11th May, 2016 the defendants had an outstanding
balance of GHS 20,327.00 on the overdraft and GHS 664,718.67 on the short term
loan totalling GHS 685,045.72. Despite demands, the plaintiff states that the
defendants have failed to satisfy their indebtedness to the plaintiff. <o:p></o:p><o:p>&nbsp;</o:p>The defendants concede that the facilities were granted to the 1st
defendant. Defendants however state that the understanding the 1st Defendant
reached with the plaintiff which culminated in the grant of the facilities in
question was that the facilities were for the purpose of assisting the 1st
defendant in its business of supplying agrochemicals to farmers and was
hinged on a good rainfall pattern experienced in the farming year. The
repayment of the facilities was therefore tied to dividends on the said
business to be undertaken by the 1st defendant. It is further the
contention of the defendants that the pre-disbursement discussions as well as
the general context in which the facilities were granted will disclose that
same were invariably linked to the ability of defendants to supply the
agrochemicals in a manner as will be dictated by the rainfall pattern
experienced in Ghana. Defendants therefore contend that the rainfall pattern
experienced in Ghana in 2015 as well as the late rains in 2016 adversely
affected the distribution and retailing of agrochemicals by the defendants.
This, defendants’ state, resulted in their inability to recover their proceeds
from farmers. Defendants further deny that the 2nd and 3rd defendants
executed any Mortgage Deed as security for the facility granted to the 1st
defendant. <o:p></o:p><o:p>&nbsp;</o:p>The issues which I have to resolve are as to whether or not the
plaintiff is entitled to its reliefs and whether or not the 2nd and
3rd Defendants are liable to the claim of plaintiff. <o:p></o:p>There is no dispute that the plaintiff granted the two facilities
i.e. the overdraft facility and the short term loan </main>