CAL BANK LIMITED v. SOMPA KOKOO COMPANY LIMITED

JUDGMENT

The instant action arose from a series of credit transactions involving the Plaintiff Bank and the Defendants herein. Specifically, the Plaintiff seeks to recover the sum of GH¢2,101,891.02, being the balance on an overdraft facility extended to the 1st Defendant in September, 2009 together with two agreed levels of interest. In addition, the Plaintiff asks for an order for the sale of the fixed & floating assets of the 1st Defendant and for the proceeds to be applied in payment of the judgment debt.

A summary of the Plaintiff’s case as gleaned from its amended statement of claim filed on 02/05/2014 is that the 1st Defendant was granted a GH¢ 2,000,000.00 Bank Guarantee and an overdraft facility (O/D) of GH¢1, 500,000.00 to augment its working capital on or about September, 2009. The O/D facility was for a period of 12 months and was at the request of both Defendants.

As security for repayment of the facilities, the 1st Defendant placed a charge on its plants, machinery, equipment and fixtures. Further, it assigned its interest in three vehicles to the Plaintiff Bank. The 2nd Defendant gave a guarantee of ¢40 billion plus interest thereon to secure the said facility. As of 22/03/2012, the Defendants’ indebtedness stood at GH¢2,101,891.02.

The Plaintiff alleges fraud on the part of the Defendants and gave these particulars:

i. In or about May, 2002, the 2nd defendant conceived the idea of forming a company to be called Sompa Kokoo Company Ltd and the same was promoted and registered by the 2nd defendant.

ii. In order to induce the Plaintiff to give the 1st defendant credit/loan facilities, the 2nd defendant who was also a good customer of the plaintiff bank allotted to themselves 100% shares in the said company and this was communicated to the plaintiff.

iii. Acting on the said representation and induced thereby, the plaintiff granted overdraft and bank guarantee to the 1st defendant

iv. The 2nd defendant has taken the monies given to the 1st defendant by the plaintiff for their own use, and had collapsed the business, and the whereabouts of the 1st defendant is unknown.

By its statement of defence field on 10/11/2012, the 1st Defendant denied that the loan was granted to it at the request of both defendants. Its case is that in the year 2009, it entered into an agreement with the Plaintiff Bank for the provision of a guarantee to augment its financial resources for the 2009/2010 main and light crop seasons. Under the agreement, the Plaint