EXPORT-IMPORTBANK OF US vs. ESM COMPNAY LTD. AND EBENEZER YAW SARPONG [2018]DLHC3487

Date	2018-03-29
Suit No.	SUIT NO.CR/BFS/0729/16
Citation No.	[2018]DLHC3487

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2018]DLHC3487
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">EXPORT-IMPORTBANK
OF US<o:p></o:p></a>vs.<o:p></o:p>ESM COMPNAY LTD. AND EBENEZER YAW SARPONG<o:p></o:p>&nbsp;[HIGH COURT (COMMECIAL
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.CR/BFS/0729/16&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;DATE: 29TH MARCH, 2018<o:p></o:p>

</div>CORAM:<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">

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>It is not in dispute that 1st Defendant
contracted a loan of $2,314,497 from the RB International Finance (USA) (RBIF) to
finance importation of equipment for its business. From the pleadings it seems
Plaintiff’s role was to provide a guarantee and a promissory note for the
approval and disbursement of the loan which were contained in a Master
Guarantee Agreement which Defendants claim they are not party to. <o:p></o:p><o:p>&nbsp;</o:p>Plaintiff alleging a default in the repayment of the
loans and having been called upon by RBIF to repay the loans to the extent of
the promissory note and the guarantee provided have sued the Defendants.
Forecasting the doomed fate of an application to join RBIF to the suit as a
Co-Defendant, the Defendants withdrew the motion for joinder only to file this
application for leave to amend its statement of defence and add a counter claim
against RBIF.<o:p></o:p>The gravamen of the application to include a counter
claim can be found in paragraphs 5 and 6 of the affidavit deposed to by Samuel
Quansah Ansah in support of the application as follows:<o:p></o:p><o:p>&nbsp;</o:p>5. From Ex ‘A’
it is clear that RB International Finance had supplied the
Defendants/Applicants with second hand machines contrary to the representation
that they financed brand new machines and the machines supplied were also
without major components to make them function at all or be used for the
purposes for which they were intended.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>6. The
Defendants/Applicants further say in Ex ‘A’ that RB International had a duty to
advise the Defendants/Applicants to seek independent legal advice in respect of
all the agreements signed but failed to discharge that duty”<o:p></o:p><o:p>&nbsp;</o:p>Counsel for Defendants/Applicants has cited a number
of factors on joinder and consolidation of suits in support of his application
to be allowed to amend his pleadings and counter claim and draw RBIF to the
suit. In terms of Order 16 of the High Court (Civil Procedure) Rules, C.I. 47
and even Order 4 Rule 5 the arguments canvassed appears to be perfect ground
for the Applicants to be allowed to amend their statement of defence and also
add a counter claim.<o:p></o:p><o:p>&nbsp;</o:p>Nonetheless, this application is peculiar in nature.
Defendants intends to file a claim against an entity that is not a party to
this suit at all. And their sole ground of intending to add RBIF is what has
been provided in paragraphs 5 and 6 supra.<o:p></o:p><o:p>&nbsp;</o:p>The loan application for which the Plaintiff herein
was not a party to but its involvement was only to provide a promissory note
does not make Plaintiff a party of the 1st Defendant’s loan contract
with RBIF. Authorities are clear that a promissory note or a bank guarantee
when issued is a separate and independent agreement on its own. See UP STATE SUGAR CORP v SUMAC INTERNATIONAL
LTD. (1997) SCC 568. And so the fact that the party that provided the Bank
guarantee sues the borrower of the loan would not entitle the borrower to claim
that it has a case against the lender and for him to seek to join the lender on
the simplistic rules applicable to amendments, joinder and consolidation of
suits.<o:p></o:p><o:p>&nbsp;</o:p>I apprehend that the Defendants are seeking the
opportunity to obfuscate the issues before the court and bring in matters that
are not convenient to be tried with the matters before the court. The laws
governing Bank g</main>