BANK OF AFRICA vs. BIG AIDOO CONSTRUCTION CO. AND ANOTHER [2018]DLHC3467

Date	2018-05-24
Suit No.	SUIT NO. BFS/276/14
Citation No.	[2018]DLHC3467

GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT

ANDREW APPAU OBENG FOR PLAINTIFF

[2018]DLHC3467
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													<main id="main" class="content" style="min-height: 60rem" >BANK OF AFRICA<o:p></o:p>vs.<o:p></o:p>BIG AIDOO CONSTRUCTION
CO. AND ANOTHER<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p>SUIT NO. BFS/276/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 24TH MAY, 2018<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>ANDREW APPAU OBENG FOR PLAINTIFF <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>In 2009, September 1st, the Plaintiff granted the 1st
Defendant a discounting facility of GH¢52,000.00 to enable the 1st Defendant
to discount on interim payment certificate No. 3-DFR which was valued
GH¢475,876.72 so as to be able to continue some surface dressing of the
Asikuma-Badum-Besease Feeder road. The parties agreed to an interest rate as
follows:- <o:p></o:p>“Interest on the facility will be charged at Base Rate (currently
at 29.75) plus 4.25% per annum collectible at the end of the period (subject to
variation in line with market trends). A default interest rate of 1%. The
parties further agreed that the facility was to be repaid in full on or before
21st February, 2010. The 1st and 2nd Defendants
executed a joint and several guarantee in favour of the Plaintiff to be liable
for the debts of the 1st Defendant. The board of the 1st Defendant
Company passed a resolution to approve the facility. <o:p></o:p>Then on the 18th September, 2009, upon a second request
by the 1st Defendant, the Plaintiff granted an IPC Discounting
Enhancement facility of GH¢10,000.00 thereby bringing the total discounting
facility to GH¢62,000.00. <o:p></o:p>The inability of the 1st Defendant to settle its
indebtedness has brought the parties to court with the Plaintiff claiming for
an order compelling the Defendants jointly and severally to pay to the
Plaintiff the sum of GH¢239,811.17 being the amount owed by the Defendant to
the Plaintiff as at the 13th day of October, 2014. In addition, the
Plaintiff has asked for interest on the said amount calculated at the
contractual rate from 13th October, 2014 to date of final payment. <o:p></o:p>It is noted that on the 1st March, 2017, the parties
were ordered to file their respective witness statements within 21 days with a
further order that the Defendants were to be served with a copy of the order.
Despite being served with the order, the Defendants failed to comply with the
order of the court. On the 30th April, 2018 the court struck out the
statement of defence filed by the Defendants in accordance with the rules of
court asamended. The Plaintiff was accordingly ordered to prove its claim. <o:p></o:p><o:p>&nbsp;</o:p>On the 15th May, 2018, the Plaintiff’s representative
testified. As has been the case all these while, the Defendants failed to
atte4nd court despite hearing notice being served on them. <o:p></o:p><o:p>&nbsp;</o:p>The case of the Plaintiff is that it granted the 1st Defendant
a discounting facility on the request of 1st Defendant in the sum of
GH¢52,000.00 on the 18th September, 2009. This was to enable the 1st
Defendant continue works on the surface dressing of the
Asikuma-Bedum-Besease feeder road. The Plaintiff tendered a copy of the
facility letter as Exhibit ‘A’. <o:p></o:p><o:p>&nbsp;</o:p>The terms and conditions of the said facility Agreement are
contained in Exhibit ‘A’. <o:p></o:p>It is the case of the Plaintiff that the Board of 1st Defendant
approved the facility by a resolution which the Plaintiff tendered as Exhibit
‘B’. The 2nd Defendant, who is the Managing Director of 1<sup</main>