DALEX FINANCE & LEASING CO v. THOMBOAT CONSTRUCTION LTD & SIC COMPANY

JUDGMENT

The Plaintiff’s claim against the 1st and 2nd Defendants jointly and/or severally was for an amount of GH¢464,409.75 being the outstanding balance as at the 9th day of June 2014 in respect of a credit facility granted to the 1st Defendant and guaranteed by the 2nd Defendant. The Plaintiff also made a claim for compound monthly interest of 6% from 10th June 2013 till date of final payment.

It was the Plaintiff’s case as per its Statement of Claim that it granted a loan facility of GH¢212,156.00 to the 1st Defendant, a private limited liability company to enable it purchase 2 trucks. This loan was secured by a guaranteed bond issued by the 2nd Defendant in which the 2nd Defendant guaranteed to pay to Plaintiff upon written demand the guaranteed sum of GH¢212,000.00 together with the agreed interest.

According to the Plaintiff, the 1st Defendant had failed to liquidate its indebtedness within the agreed period of 12 months. The 2nd Defendant had also failed to make good on its guarantee to repay the loan in spite of written demands made on it.

The 1st Defendant stated in its defence that though the Plaintiff purchased the articulator heads for it, these were registered in the Plaintiff’s name and the vendor did not recognize the 1st Defendant as the purchaser. These trucks heads were also insured with Star Assurance in Plaintiff’s name.

The Defendant stated further that one of the truck heads developed a gear box fault. The Plaintiff was informed yet failed to make a demand as the registered owner for the replacement or repair of under the warranty with the vendors.

The vehicle then got involved in an accident but the Plaintiff and the 2nd Defendant who were joint insured parties failed ot claim on the insurance policy. As a result, the 1st Defendant found it impossible to execute the haulage contract he had with the Ghana Bauxite Company.

The 1st Defendant made a counterclaim against the Plaintiff and the 2nd Defendant for the following reliefs:

i. A declaration that the Plaintiff was in breach of trust when it failed to make a claim under the warranty when the gear box of the articulator head got broken only 2 months after it was bought from Stella Logistics Ltd.

ii. A declaration that the Plaintiff and 2nd Defendant were in breach of trust when they failed to make a claim under the insurance policy for payment of compensation to the 1st Defendant as beneficiary when the tipper got damaged.

iii. Damages for breach of trust and loss of ear