FIRST ATLANTIC BANK LIMITED vs NORDIC LOGISTICS LIMITED & ORS
November 14, 2022
HIGH COURT
GHANA
CORAM
- HER LADYSHIP, JANE HARRIET AKWELEY QUAYE (MRS.),
Areas of Law
- Civil Procedure
- Contract Law
- Evidence Law
November 14, 2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Ghana High Court, per Her Ladyship Jane Harriet Akweley Quaye, determined an application by the 4th and 5th Defendants to strike out the suit as settled. Applicants argued that after paying GHC11,000,000—GHC6,000,000 from selling eight buses to Depps Law Consult and GHC5,000,000 through cheques—and after Respondent released DVLA ownership documents, Respondent lacked any cause of action. Respondent conceded receiving the GHC11,000,000 but maintained it was part payment of a larger indebtedness, pointing to Exhibit F, unfiled terms acknowledging total indebtedness of GHC24,501,955.17 and proposing GHC17,000,000 as full settlement, which Respondent did not sign. The Court held settlement terms are contractual and require consensus ad idem and execution by both parties; Exhibits SA4 and F did not constitute a binding settlement. Finding the parties were not ad idem and no executed terms were filed, the Court refused to strike out the suit, awarded costs of GHC10,000 to Respondent, and ordered the case to continue with adjournment for the injunction application.
This is an application filed in the Registry of this Court on 20th September, 2022 to strike out the instant suit as settled.
It is the case of the 4th and 5th Defendant/Applicants hereinafter referred to as Applicants, through an Affidavit in Support that the Plaintiff/Respondent hereinafter referred to as Respondent does not have the capacity to mount this suit because they do not have a cause of action against them after having paid the sum of Eleven Million Ghana Cedis (GHC 11,000,000.00) in full and final settlement of this suit to the Respondent as agreed by the parties,
The antecedents of this application arise from the fact that the Respondent on or about 1st November, 2019 issued a Writ of Summons and Statement of Claim on the Defendants claiming specific reliefs.
According to the Applicants, it was the 1st Defendant who contracted the facility in the sum of GHC8,944,213.37 from Energy Commercial Bank in part finance of its acquisition of buses. That the facility was contracted with a further agreement for the said Energy Commercial Bank to provide further financing to the 1st Defendant for the acquisition of bus terminals in Accra and Lagos-Nigeria to operate an international shuttle. Defendants state that from nowhere, the Plaintiff alleged that it has merged with the said Energy Bank and has taken over all the assets of the latter.
That the rest of the Defendants are Guarantors who guaranteed the performance of the 1st Defendant.
Applicants state that at the material time, Plaintiff’s suit was to recover the sum of GHC17,406,133.33. Applicants denied ever having any contract with the Plaintiff or owing any sums of money to the Plaintiff and maintained that it was the 1st Defendant who contracted the facility in the sum of GHC8,944,213.37 from Energy Commercial Bank in part finance of its acquisition of buses. Furthermore, the facility was contracted with a further agreement for the said Energy Commercial Bank to provide further financing to the 1st Defendant for the acquisition of bus terminals in Accra and Lagos-Nigeria to operate an international shuttle.
The case of the Applicants is that eventually, the parties agreed that without recourse to any payments previously made, the Defendants were to pay the agreed settlement amount of GHC11,000,000.00 in full and final settlement of this dispute and same was paid as follows:
i. Sale of eight(8) buses to Messrs Depps Law Consult at US$1,000,000.00 which was at the time GHC6,000,000.00
ii.