BARCLAYS BANK GHANA LIMITED (PLAINTIFF) vs. AKUAFO ADAMFO MARKETING CO. LTD. & ORS. (DEFENDANTS) [2018]DLHC7189

BARCLAYS BANK GHANA LIMITED (PLAINTIFF) vs. AKUAFO ADAMFO MARKETING CO. LTD. & O... [2018]DLHC7189

Date	2018-04-16
Suit No.	SUIT NO. CM/0049/16
Citation No.	[2018]DLHC7189

HIS LORDSHIP GEORGE K. KOOMSON (J).

MAXWELL LOGAN (WITH SIKA AGGREY) FOR THEPLAINTIFF/APPLICANT

KOJO ASARE BOATENG FOR SAMUEL CODJOE FOR THE DEFENDANTS/ RESPONDENTS.

[2018]DLHC7189
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													<main id="main" class="content" style="min-height: 60rem" >BARCLAYS BANK GHANA
LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>AKUAFO ADAMFO MARKETING
CO. LTD. &amp; ORS.<o:p></o:p>(DEFENDANTS)<o:p></o:p><o:p>&nbsp;</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;
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SUIT
NO. CM/0049/16&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; DATE: 16TH APRIL, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MAXWELL LOGAN (WITH SIKA
AGGREY) FOR THEPLAINTIFF/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KOJO
ASARE BOATENG FOR SAMUEL CODJOE FOR THE DEFENDANTS/ RESPONDENTS.<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>A brief summary of the facts in this
case is that the 1st Defendant obtained various forms of facilities
from the Plaintiff in 2014.&nbsp; These
facilities were guaranteed by 2nd to 5th Defendants. &nbsp;The purpose of these facilities was to enable
1st Defendant purchase cocoa beans in the 2014/2015 cocoa crop
season.&nbsp; At the expiration of the
facility term, the 1st Defendant was unable to repay the amount
granted to it with interest.&nbsp; The
Plaintiff therefore issued the present action to recover all outstanding
balance from the Defendants. The case was referred to me for pre-trial
settlement. I must say that settlement broke down and the Court settled the
issues on the 19th May 2016. Contrary to the practice at the
Commercial Court, applications were put before me, though I was the pre-trial
Judge. None of the parties objected to this.<o:p></o:p>Consequently, the Court heard these
applications. One of such application is the instant one which the Plaintiff is
seeking an order to enter judgment on behalf of the Plaintiff based on the
amount certified by the auditor appointed by the Court as being owed to the
Plaintiff by the Defendant.&nbsp; &nbsp;&nbsp;<o:p></o:p>The Defendanst contend that by an oral
agreement the Plaintiff agreed not to pursue their right to recover any debt
owed by the Defendants until the 1st Defendant has gone through a
restructuring.&nbsp; This assertion has been
denied by the Plaintiff.&nbsp; Defendants
further stated that pre-trial has not been completed therefore the Plaintiff’s
application is premature. I do not want to belabour this point, as I have
already stated that pre-trial settlement broke down and issues were settled as
far back as May 2016.<o:p></o:p>The question which I have to resolve in
this application is as to whether an order be made entering judgment on the sum
certified in the accounts in favour of the Plaintiff.<o:p></o:p>I have read the application and all the
affidavits filed by the parties.&nbsp; I have
also considered the oral submissions made by both Counsel. Regard has been
given to Order 29 of the High Court (Civil Procedure) Rules, 2004, C.I.
47.&nbsp; It is however useful for me to place
emphasis on Order 29 Rule 1 thereof, which states:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “(1)
Where a writ indorsed with a claim includes a claim for an account or a claim
which necessarily involves taking an account, the Plaintiff may, at any time
after the Defendant has filed appearance or after the time limited for filing
appearance apply for an order for account under this rule.<o:p></o:p>(2)
An application under this rule shall be supported by affidavit or other
evidence if the Court so directs.<o:p></o:p>(3)
On the hearing of the application the Court may, unless satisfied by the
Defendant by affidavit or otherwise that there is some preliminary question to
be tried order that an account be taken, and may also order that any amount
certified on taking the account to be due to either party be paid to that party
within a time specified in the order”.<o:p></o:p>The Defendants do not deny the fact
that 1st Defendant took the facility from the Plaintiff. They further
do not deny owing the Plaintiff some outstanding balance.&nbsp; It is the actual debt owing that was in issue
which prompted the application for accounts was filed.<o:p></o:p>Now, accounts have been gone into and
it has been established and certified that the Defendants owe the Plaintiff in
the sum of GH¢61,454,538.03. Having certified this amount as the debt owed by
the Defendants, the question is, should the Court order the Defendants to pay
the Plaintiff within a specified time? It is noted that an order for accounts
can be made at any time of the proceedings, even after judgment: see the case
of BARBER
VS. MACKRELL (1879) 12 Ch. D. 534.<o:p></o:p>