October 18, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The High Court, presided over by Justice Angelina Mensah-Homiah, adjudicated a debt recovery action arising out of credit facilities granted by the plaintiff bank to a corporate borrower. The plaintiff’s relationship manager, Shirley Wiafe Ameyaw, testified that an overdraft and two term loans were extended, with clear repayment periods, and that the 1st Defendant, through its Managing Director, Joseph Kodua, accepted the terms in a letter of undertaking. The 2nd and 3rd Defendants secured repayment by a legal mortgage over property at Santasi New Site, Kumasi, and a continuing indemnity. After the 1st and 2nd Defendants’ defence was struck out for failure to comply with witness statement directions, the court examined the bank’s statements of account and found the proven indebtedness to be GH¢ 387,497.82 rather than the GH¢ 390,275.56 pleaded. Applying the civil burden of proof and corporate personality principles, and recognizing the indemnity and mortgage, the court entered judgment against the 1st and 2nd Defendants for GH¢ 387,497.82, awarded interest at the prevailing commercial bank rate from 1/11/2014 to final payment, and costs of GH¢ 20,000.
JUDGMENT
This is a debt recovery action in which the Plaintiff bank seeks to recover an amount of GH¢ 390, 275.56 arising from unpaid credit facility granted by the plaintiff to the 1st Defendant and interest thereon from 1/11/2014 to the date of final payment. Details of the grant of the credit facility and the events leading to the default are adequately captured in the Plaintiff's statement of claim filed on 28/01/15.
The 1st and 2nd defendants caused their solicitor to enter appearance on their behalf on 27/02/2015 and he proceeded to file a defence. However, the 3rd Defendant was served with the writ of summons and statement of claim by substituted service by an order of this court dated 18/03/2016 but he failed to enter appearance.
After the pre-trial stage, the court gave further directions as to the filing of witness statements.
Counsel for the 1st and 2nd Defendants who was not in court at the time orders were made for the filing of witness statements was duly served with the court notes on 28/01/2016 (see affidavit of service sworn on 28/01/2016). Subsequently, the Plaintiff's witness statement and numerous hearing notices were served on their counsel to attend Case Management Conference but he elected not to come to court and his clients did not also file their witness statements.
At the case management stage, the defence filed by the 1st and 2nd Defendants was struck out under Order 32 rule 7A (3) (b) of C.I. 47 as amended by C.I. 87. Thereafter, the Plaintiff was called upon to prove its claim against the 1st and 2nd Defendants. The sole issue set down for trial is whether or not the Plaintiff is entitled to its claim.
At the trial, the Relationship Manager of the Plaintiff/bank, Shirley Wiafe Ameyaw, testified on its behalf. She relied on her witness statement filed on 18/1/16. In her testimony, the Plaintiff's representative said the bank extended an overdraft facility (O/D) of GH¢ 200,000.00 and two term loans totaling GH¢ 187,802.80 at an interest rate of 39.92% per annum to the 1st Defendant. In respect of the repayment of those credit facilities, she told the court that the O/D was to be repaid within a period of twelve months and the two term loans of GH¢ 160,000.00 and GH¢ 27,802.80 were to be liquidated within 24 and 9 months respectively. These terms, according to the witness, were accepted by the 1st Defendant acting through its Managing Director, the 2nd Defendant. Continuing, the witness indicated that the 2nd and 3rd Defend