AGRICULTURAL DEVELOPMENT BANK (PLAINTIFF) vs. ALTIMATE AGROCHEMICAL CO. & 2 ORS (DEFENDANT) [2017]DLHC7294

AGRICULTURAL DEVELOPMENT BANK (PLAINTIFF) vs. ALTIMATE AGROCHEMICAL CO. & 2 ORS... [2017]DLHC7294

Date	2017-05-31
Suit No.	SUIT NO. CM/BFS/0363/16
Citation No.	[2017]DLHC7294

HIS LORDSHIP GEORGE K. KOOMSON (J).

BANNERMAN WILLIAMS JNR FOR PLAINTIFF

MICHELLE AKUFFO FOR DEFENDANTS

[2017]DLHC7294
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													<main id="main" class="content" style="min-height: 60rem" >AGRICULTURAL
DEVELOPMENT BANK<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ALTIMATE
AGROCHEMICAL CO. &amp; 2 ORS<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<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. 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; &nbsp; &nbsp; &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: 31ST
MAY, 2017<o:p></o:p>

</div>COUNSEL: <o:p></o:p>BANNERMAN
WILLIAMS JNR 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">

MICHELLE
AKUFFO FOR DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP GEORGE K. KOOMSON (J).<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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>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>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.&nbsp; <o:p></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.<o:p></o:p>It is further the contention of the plaintiff that
the 1st defendant defaulted in the repayment of the facilities
granted to it.&nbsp; 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.&nbsp; 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.&nbsp; Despite
demands, the plaintiff states that the defendants have failed to satisfy their
indebtedness to the plaintiff.<o:p></o:p>The defendants concede that the facilities were
granted to the 1st defendant.&nbsp;
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. &nbsp;The repayment of
the facilities was therefore tied to dividends on the said business to be
undertaken by the 1st defendant.<o:p></o:p>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.&nbsp;
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.&nbsp; This, defendants’ state, resulted in their
inability to recover their proceeds from farmers.&nbsp; 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>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 facility to
the 1st defendant.&nbsp; The terms
and conditions of the facilities are also not disputed by the parties.&nbsp; However, in resolving whether or not the
plaintiff is entitled to its reliefs, I have to resolve the question which
arises out of the assertions made by the defendants that the understanding
reached between the parties, prior to the release of the funds, was to assist
the 1st defendant in the importation of agrochemicals for retail and
distribution and that the facility was hinged on the expected good rainfall
pattern experienced in the farming year.&nbsp;
The question therefore is, did the parties agree that the repayment of
the facility was hinged on the pattern of rainfall in the country?<o:p></o:p>It is not necessary for present purposes to look
beyond the speech of Lord Neuberger in ARNOLD
v BRITTON [2015] AC 1619 to be reminded of the relevant legal principles of
contractual interpretation, where he states;<o:p></o:p>