GHANA GROWTH FUND LTD v. TALKAI COMPANY LTD & 5 OTHERS
2018
HIGH COURT
GHANA
CORAM
- JUSTICE JENNIFER A. DODOO (MRS)
Areas of Law
- Contract Law
- Corporate Law
- Civil Procedure
- Evidence Law
- Banking and Finance Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Jennifer A. Dodoo adjudicated a dispute between Ghana Growth Fund Ltd, a private equity firm, and Talkai Company Ltd and its directors concerning facilities tied to construction works. The plaintiff alleged fraudulent diversion of joint payments and sought an outstanding GH259,603.58 plus interest at 4% per month compounded daily, while defendants denied the facility or argued noncompliance with the Borrowers and Lenders Act, 2008 (Act 773). After multiple hearing notices, defendants failed to file witness statements or attend trial, so the court proceeded under CI 47 and supporting authorities. Reviewing Exhibits A and B, the court found the earlier GH220,000 facility, secured by personal guarantees, had been repaid; the later GH80,000 facility, of which GH50,000 was disbursed, lacked corresponding guarantees. The court rejected unproven fraud allegations, confirmed corporate separateness, and awarded GH50,000 against Talkai Company Ltd with contractual interest from 24 March 2015 and GH10,000 costs.
JUDGMENT
1. Interest rates
2. Guarantors’ liability on a loan contract
3. The Borrower’s and Lender’s Act and its effect on loan contracts
4. Defendants’ failure to attend trial
In a writ issued out of the Registry of this Court, the Plaintiff claimed the sum of GH¢259,603.58 being the outstanding balance on the facility together with interest of 4% per month compounded daily on the outstanding balance of GH¢259,603.58 from 24th March 2015 till date of final payment. The Plaintiff described itself in its Statement of Claim as being a private equity company providing financial support to corporate entities. It stated that it had advanced to the 1st Defendant Company a loan facility for the construction of a 6 unit classroom block and other ancillary facilities at the Adabia Primary School. The 2nd to 5th Defendants had offered personal guarantees towards 1st Defendant’s repayment of the said facility.
According to the Plaintiff, the facility which was to run for 360 days at an interest rate of 4% per month compounded daily was secured by a letter dated 7th September 2011 from the Architectural and Engineering Services Ltd for the issuance of joint payment certificates to enable the Defendants honour payment.
It was the Plaintiff’s case that though the initial certificate was raised in the joint names of Plaintiff and 1st Defendant, the Defendants managed to secure payment solely thus denying the Plaintiff of any benefit under the certificate. The Plaintiff contended that the Defendants’ conduct was fraudulent. It gave the particulars of fraud as the following:
a) Defendants securing the cheques for payment in their sole names.
b) Defendants appropriating the cheques for their sole benefit without reference to the Plaintiff and contrary to the investment agreement.
The Defendants filed a joint defence in which they denied receiving a facility from the Plaintiff. They also stated that even if they had received a facility from the Plaintiff, this would have been in contravention of the Borrowers and Lenders Act, 2008 (Act 773) particularly at section 18.
The Plaintiff in Reply contended that the denial of ever taking a facility was dishonest and contended further that to allege illegality to the grant of the said facility was also a misapprehension of the law.
The issues set for trial are:
1. Whether or not Plaintiff is duly licensed to operate as a financial institution?
2. Whether or not the facility agreement between the parties is unlaw