ERIC OSEI vs. UNION SAVINGS AND LOANS LTD [2017]DLHC4155

Date	2017-06-28
Suit No.	SUIT NO. RPC 07/2016
Citation No.	[2017]DLHC4155

DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE

SULLEY SAMBIAN FOR THE PLAINTIFF

JUDY EDUSEI FOR THE DEFENDANT

[2017]DLHC4155
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													<main id="main" class="content" style="min-height: 60rem" >ERIC OSEI<o:p></o:p>vs.<o:p></o:p>UNION SAVINGS AND LOANS LTD<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;
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SUIT&nbsp;NO. RPC 07/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 28TH JUNE, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>SULLEY SAMBIAN FOR THE
PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
mso-pagination:none;mso-layout-grid-align:none;text-autospace:none"><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>On 11 November 2015 the
Plaintiff instituted an action against the Defendant for the following reliefs:<o:p></o:p>a.
A declaration that the failure by the defendant to transfer funds to
Plaintiff’s business partners in China amounted to a breach of Contract.<o:p></o:p>b.
General damages for breach of contract.<o:p></o:p>c.
Cost including Solicitor’s fees.<o:p></o:p>The plaintiff’s case is
reflected in his statement of claim and the witness statement filed on the 12th
of May, 2016. A summary of the Plaintiff’s case is that he is a businessman
trading in second hand clothing under the name and style Blueing Enterprise and
resides in Kumasi. The Plaintiff averred that he has since 2013 operated a bank
account with the Defendant company at their Manhyia Branch and had previously
been granted a loan facility of GHC 25,000.00 to enable him expand his
business. According to the plaintiff, whilst the payment of this facility was
pending, he applied for an overdraft facility to enable him buy second hand
clothing from China. This was at a time when he had been granted accommodation
by the Defendant to defray the earlier loan by making monthly payment of GHC 1,000.00.<o:p></o:p>At the heart of the
Plaintiff’s case is that between the months of September and November, 2014 he
entered into a business partnership with one OsofoMaame and her husband for the
supply of forty feet second hand clothing worth fifty-five thousand US dollars ($
55,000.00). The Plaintiff’s case is that by the agreement he was required to
make a part payment of thirty thousand US dollars ($30,000) and the balance
paid within two weeks after delivery of the goods to Plaintiff. It was because
of his lack of financial muscle which is why he resorted to the Defendant for
financial assistant by way of an overdraft.<o:p></o:p>The Plaintiff further
stated that the Defendant agreed to advance the 30,000 USD equivalent of GHC
96,000.00 to him. The Defendant,however, advised him to make a deposit to the
tune of GHC 36,000.00 i.e. the equivalent of 5,000 USD so that in the event
that the goods arrive he would be in a position to pay the clearing charges. According
to plaintiff it was the Defendant’s representative who gave him the assurance
that the overdraft facility has been approved and that the same will be
disbursed in no time. This assurance according to Plaintiff was also given to
PW1 when he met the defendant’s representatives at the bank. According to Plaintiff,
DW1 told them that the amount had been approved except that the branch manager
was not available to authorise the transaction. DW1 then advised the Plaintiff
to make an advance payment of 5,000 USD (which was sitting in the Plaintiff’s
account) to PW1 to enable the latter embark on the trip whilst the balance is
subsequently transferred to him in China. However, when PW1 travelled to China
the Defendant failed to transfer the 25,000 USD to him in spite of the earlier
assurances.<o:p></o:p>PW1 maintained during his
testimony that DW1 assured the Plaintiff in his presence that the overdraft
facility had been approved and it was left with the branch manager to ensure
that same is disbursed. He also told the court that whist in China, DW1 spoke
to him and assured him that the money will be transferred into his account
sooner than later.<o:p></o:p>The Defendant denied the
claim of the Plaintiff and stated that the Plaintiff came to their office to
secure a loan in anticipation of a partnership agreement. He (the plaintiff)
went through the processes of securing the loan facility in order to boost his
financial standing for the partnership he was intending to enter into. The case
of the Defendant is that the Plaintiff was not credit worthy since he had
defaulted on an earlier loan facility granted to him which is why the overdraft
facility was not granted. <o:p></o:p>Settlement broke down at
the pre-trial settlement stage and the following issues were set down for
trial: <o:p></o:p>1.
Whether defendant represented to Plaintiff that an overdraft facility of GHC
90,000.00 had been granted pursuant to whichthe Plaintiff made part payment of 5000
USD to the Plaintiffs Business Partners on the advice of the Defendant?<o:p></o:p>