DANIEL GIBSON DANSO vs. INTECELL INVESTMENT LTD. & 3 OTHERS [2020]DLSC9919

Date	2020-11-11
Suit No.	CIVIL APPEAL NO. J4/32/2020
Citation No.	[2020]DLSC9919

DOTSE JSC (PRESIDING)

PWAMANG JSC

TORKORNOO (MRS.) JSC

HONYENUGA JSC

PROF. MENSA-BONSU (MRS.) JSC

PATRICK KOJO YAMOAH FOR THE DEFENDANTS/APPELLANTS/APPELLANTS

NANA KOFI BEKOE FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2020]DLSC9919
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													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk35510717">DANIEL GIBSON DANSO&nbsp;&nbsp;&nbsp; <o:p></o:p></a>(PLAINTIFF/RESPONDENT/RESPONDENT)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>vs.<o:p></o:p>INTECELL INVESTMENT LTD.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(DEFENDANT) <o:p></o:p>KUDJO ANKU, DAVID FAMEYE
AND DAVID OSEI-MANU (DEFENDANTS/APPELLANTS/APPELLANTS)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

CIVIL APPEAL NO. J4/32/2020&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 11TH NOVEMBER, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PATRICK KOJO YAMOAH FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

NANA KOFI BEKOE FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>DOTSE, JSC (PRESIDING), PWAMANG, JSC,
TORKORNOO (MRS.), JSC, HONYENUGA, JSC, PROF. MENSA-BONSU (MRS.), JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormalCxSpFirst" align="center" style="text-align:center;line-height:
150%;tab-stops:147.0pt;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>PROF. MENSA-BONSU
(MRS.), JSC:-<o:p></o:p>INTRODUCTION<o:p></o:p>This
case has travelled a painful and tortuous road, and comes to this Court on
appeal from a decision of the Court of Appeal in a judgment delivered on 18th
July 2019. The genesis of the appeal was that the High Court, had on 24th
January, 2018, dismissed the application of the 2nd, 3rd and
4th Defendants (hereinafter referred to as ‘Defendants) for
Misjoinder under Order 4 r 5 of the High Court (Civil Procedure) Rules 2004 as
amended; and had also upheld the 1st February application for Summary Judgment
of the applicant (hereinafter referred to as ‘Plaintiff’) under order 14 of the
High Court (Civil Procedure) Rules 2004 as amended. This Ruling of the High
Court granting the application of plaintiff for Summary Judgment was
subsequently affirmed by the Court of Appeal on 18th July, 2019, giving rise to
the instant appeal. The Respondent and Appellants herein are simply referred to
as ‘Plaintiff’ and ‘Defendants’ respectively, to avoid confusion.<o:p></o:p><o:p>&nbsp;</o:p>FACTS<o:p></o:p>The
facts of the case were that in May 2011, the plaintiff who had been introduced
to the Defendant-Company by another person, entered into an agreement with the
Company, variously described as a ‘Microfinance Company’ by the plaintiff and
an ‘Investment Company’ by the Defendants. The 2nd defendant was designated
as ‘Ag Managing Director’, and the 3rd and 4th defendants
were the other Directors. The plaintiff believed he was investing his funds for
monthly returns of 3% interest, for one year. The agreement, which described
the Plaintiff as ‘Lender’ and the Defendant-Company as ‘Borrower’, was for a
period of twelve months, subject to either party’s right to termination or extension
upon serving three months’ notice. Under the agreement, the Plaintiff agreed to
lend GHc 80,000 to the Defendants at the rate of 3% interest per month. This
monthly interest on the principal sum amounted to Ghc2,400. The total interest
expected under the agreement was Ghc28,200. The agreement was signed by the Ag.
Managing Director (2nd defendant) witnessed by the Accountant Jesse
Maxwell Caleb, on the part of the Company, and by the Plaintiff, witnessed by Mrs.
Theresa Kuma, the person who introduced the Plaintiff, to the Defendant-Company.&nbsp; <o:p></o:p>Barely
four months into the agreement, in August 2011, the Plaintiff asked for a
return of half of his investment ie Ghc 40,000, on grounds of pressing
financial need. The Defendant-Company did not give him the money but instead, continued
to pay the agreed monthly interest. On 27th October 2011, Plaintiff
wrote to Defendant-Company again, this time, asking for the full amount of
Ghc80,000 back. The Defendant-Company failed to pay up although the monthly
interest payments of Ghc2,400 still continued to be paid.&nbsp; In total, the monthly interest was paid by
the Defendant-Company from June 2011 until February 2012 when payments ceased,
according to the Defendants, on account of “operational difficulties”. The
‘Cheque Payment Voucher’ on which the payments were made described the payments
as “interest on Investments paid to Mr. Daniel Gibson Danso for the month of
…”. These were all on the letterhead of the Defendant-Company and duly signed
by the Ag Managing Director and the Accountant of the Defendant-Company
respectively. (Exh B series). &nbsp;When the
Plaintiff changed his mind about the transaction and wrote to the
Defendant-Company, the letter, titled ‘Letter of Termination of Loan’ was addressed
to the Managing Director of Defendant-Company, and not any of the other Defendants,
and signed by Plaintiff. <o:p></o:p>Following
the failure to refund the capital sum of Ghc80,000 paid to Defendant- Company,
the Plaintiff, a retired senior police officer, made a report to the Criminal
Investigations Department (CID) of the Ghana Police Service. The CID launched
an investigation into the Defendant Company, and arrested the Directors (2nd,
3rd and 4th Defendants). In the course of the
investigations, the police allegedly wrote to the Bank of Ghana to ascertain
whether Defendant-Company was registered with them as a Micro-Finance Company.
The alleged letter from the Bank of Ghana replied the enquiry in the negative,
and indicated further that there was no pending application for registration by
the Defendant-Company. Upon these revelations, the police charged the three
Defendants under section 2(1) of Non-Bank Financial Institutions Act, 2008 (Act
774), for operating a microfinance company without licence. They were also
charged under sections 23 and 131 of the Criminal Offences Act 1960, (Act 29)
for conspiracy to operate </main>