NDK FINANCIAL SERVICES LTD. v. AHAMAN ENTERPRISE LTD. & ORS
2013
COURT OF APPEAL
GHANA
CORAM
- OWUSU M., J.A. (PRESIDING)
- DANQUAH I., J.A.
- TORKORNOO G., J.A
Areas of Law
- Contract Law
- Civil Procedure
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The main issue was whether an 'undertaking' by the Ministry of Energy to make payments in the joint names of the plaintiff and the 1st defendant created a legal obligation enforceable against the 2nd defendant. The trial court dismissed the claim against the 2nd defendant, but the plaintiff appealed. The Court of Appeal held that the Ministry's undertaking was binding and the dismissal was set aside. The Court ordered the Ministry to render accounts and assessed costs of GH¢5,000 against the 2nd defendant.
MARIAMA OWUSU, J.A:
The main issue for determination in this appeal is whether or not “an undertaking” by a party creates any legal obligation. In other words, is the undertaking enforceable against the 2nd defendant? The trial judge answered this question in the negative.
Dissatisfied with the decision of the trial judge, the plaintiff appealed to this Court on the following grounds:
1. Part of the judgment dismissing the claim against 2nd defendant is against the weight of evidence.
2. The learned trial judge erred when she held that the undertaking by Ministry of Energy to pay proceeds of the haulage contract in the joint names of the plaintiff and the 1st Defendant Company was not binding and enforceable against 2nd defendant.
3. The learned trial judge erred when she held that the plaintiff could not claim the benefit of the undertaking to pay the proceeds of the haulage contract in the joint names of the plaintiff and the 1st defendant company.
4. Others grounds of appeal will be filed upon receipt of the certified record of proceedings.
The relief sought from the Court of Appeal;
That part of judgment dismissing the claim against the 2nd defendant be set aside and judgment entered against the 2nd defendant.
Before dealing with the arguments for and against this appeal, I will give a brief background of this case.
The plaintiff by its writ of summons claims against the defendants as follows;
1. Jointly and severally against:
[a] the 1st, 3rd 4th 5th and 6th defendants an order for recovery of the sum of GH¢1,008,833.70 being the balance due and owing as at March 31, 2009, on account of credit facilities extended to 1st defendant by plaintiff between 26th August 2005 and 28th April, 2006, repayment of which was secured by 3rd, 4th 5th and 6th defendants but payment of which they have failed to make good several demand notices notwithstanding.
[b] Interest on the said sum of GH¢1,008,833.70 at the rate of 6.5% per month calculated at the close of each day and payable at the end of every month from 1st April 2009, up to and inclusive of date of final payment.
[c] Costs.
2. Jointly and severally against:
[a] Defendants the sum of GH¢286,250.52 being part of the debit balance due under the facilities granted to 1st defendant by plaintiff between 26th August, 2005 and 28th April 2006, which sum was secured together with other payments due 1st defendant by 2nd defendant but paid to 1st defendant on 6th January, 2009 as a result