NDK FINANCIAL SERVICES LIMITED v. COLLINS ASAMOAH ACHEAMPONG & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- HENRY KWOFIE JA (PRESIDING)
- ERIC BAAH JA
- RICHARD ADJEI-FRIMPONG JA
Areas of Law
- Tort Law
- Banking and Finance Law
- Civil Procedure
- Contract Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Richard Adjei-Frimpong JA delivered the Court of Appeal’s judgment in a dispute arising from NDK Financial Services’ short-term financing for the 1st defendant’s purchase of sugar from the 2nd defendant. Of the agreed GHC550,000 facility, GHC224,000 was deposited into the 2nd defendant’s Access Bank account after assurances from the bank’s Cluster Head that a Post No Debit would prevent withdrawals until delivery was confirmed. When delivery allegedly failed and funds were accessed, NDK sued multiple parties. The High Court held only the 2nd defendant liable and found no cause of action against the 1st and 3rd defendants. On appeal, NDK withdrew its challenge against the 1st defendant. The Court of Appeal concluded that NDK’s pleadings disclosed a cause of action against Access Bank but, based on timing and reliance, NDK did not prove that Access Bank assumed responsibility or that NDK relied on the email before making payment. The appeal against Access Bank was dismissed; Justices Kwofie JA and Baah JA concurred.
RICHARD ADJEI-FRIMPONG JA:
The facts of the case culminating in this appeal are fairly straight-forward. In the normal course of its business as a non-banking financial institution, NDK Financial Services, the plaintiff/appellant herein (plaintiff for short) entered into a short-term facility agreement with the 1st defendant/respondent (1st defendant).
The sum contracted for was GHC550,000.00 which was to enable the 1st defendant purchase 10,000 bags of sugar (a brand called Incumsa 150) from the suppliers, the 2nd defendant/respondent (2nd defendant). The disbursement, according to the facility agreement was to be made directly to the suppliers, the 2nd defendant. The sum was repayable in three-months at a monthly interest rate of 5.5%.
As it turned out, not the entire contracted sum was disbursed under the transaction. About a half of it, GHC 224, 000.00, was disbursed to the 2nd defendant through its bankers, the 3rd defendant/respondent (3rd defendant) at its Tema branch.
In the events that followed, provoking a controversy over the supply of the sugar and the resultant non-payment of the sum disbursed, the plaintiff commenced the instant suit at the High Court against the 1st, 2nd and 3rd defendants. Subsequently, the 2nd defendant obtained an order joining the 4th defendant to the action.
According to the plaintiff, the disbursement directly to the 2nd defendant was to ensure that the sum advanced was used for the disclosed and intended purpose, and also that the 1st defendant would obtain title to the sugar, the stock of which was to be used to secure the loan by a deed of assignment to the plaintiff.
In pursuit of the disbursement, officials of the plaintiff met with one Yvonne Nana Akua Antonio, the then Cluster Head of Retail Baking of the 3rd defendant who by an email correspondence assured them that a Post No Debit (PND) would be placed on the account of the 2nd defendant until the sugar was delivered to the 1st defendant and the plaintiff had confirmed same.
The plaintiff’s grief was that, in spite of this arrangement, the 2nd defendant failed to supply the sugar and without any confirmation, the 3rd defendant, contrary to the assurance given, also permitted the 2nd defendant to access the funds deposited in the account. Particularly against the 3rd defendant, the plaintiff pleads misrepresentation and deceit, essentially, for going back on its word on the PND assurance.
The plaintiff thus, claimed jointly and severally against the 1st