BANK OF AFRICA (PLAINTIFF) vs. BIG AIDOO CONSTRUCTION CO. & ANOR (DEFENDANTS) [2018]DLHC7278

Date	2018-05-24
Suit No.	SUIT NO. BFS/276/14
Citation No.	[2018]DLHC7278

HIS LORDSHIP GEORGE K. KOOMSON (J).

ANDREW APPAU OBENG FOR PLAINTIFF

[2018]DLHC7278
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													<main id="main" class="content" style="min-height: 60rem" >BANK OF AFRICA<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>BIG AIDOO CONSTRUCTION CO. &amp; ANOR<o:p></o:p>(DEFENDANTS)<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;
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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;DATE:
24TH MAY, 2018<o:p></o:p>

ANDREW APPAU OBENG FOR PLAINTIFF&nbsp;&nbsp;&nbsp; <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">JUDGMENT<o:p></o:p>

</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.&nbsp; 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).&nbsp; A default interest rate of 1%.&nbsp; The parties further agreed that the facility
was to be repaid in full on or before 21st February, 2010.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; Despite being served with the order, the
Defendants failed to comply with the order of the court.&nbsp; On the 30th April, 2018 the court
struck out the statement of defence filed by the Defendants in accordance with
the rules of court as amended.&nbsp; The
Plaintiff was accordingly ordered to prove its claim.<o:p></o:p>On the 15th
May, 2018, the Plaintiff’s representative testified.&nbsp; 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>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.&nbsp;
This was to enable the 1st Defendant continue works on the
surface dressing of the Asikuma-Bedum-Besease feeder road.&nbsp; The Plaintiff tendered a copy of the facility
letter as Exhibit ‘A’.<o:p></o:p>The terms and
conditions of the said facility Agreement are contained in Exhibit ‘A’.&nbsp; 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’.&nbsp; The
2nd Defendant, who is the Managing Director of 1st
Defendant executed a joint and several guarantee with the 1st
Defendant in favour of the Plaintiff to be liable for the debts of 1st
Defendant.&nbsp; The Plaintiff further
contended that at the request of the 1st Defendant, the Plaintiff
granted to the 1st Defendant an IPC discount enhancing facility of
GH¢10,000.00 on the 18th September, 2009, bringing the total discounting
enhancing facility to GH¢62,000.00.<o:p></o:p>It is the
contention of the Plaintiff that the Defendants, contrary to the terms of the
facility granted, failed to honour their repayment obligations.&nbsp; Plaintiff stated that they condu</main>