NDK FINANCIAL SERVICES LTD. v. AHAMAN ENTERPRISES LTD & ORS

DOTSE,J.S.C:

This is an appeal by the Defendant, Respondent/Appellant, hereafter referred to as the Defendant, against the decision of the Court of Appeal, dated 28th March 2013 which was in favour of the Plaintiffs/Appellants/Respondents, hereafter referred to as the plaintiffs. In a nutshell, whilst, the Plaintiffs, claims against the Defendant, (therein 2nd Defendants) was dismissed by the judgment of the High Court, dated 21st December 2011, the Court of Appeal on the 28th March 2013 reversed the judgment of the High Court, and entered judgment in favour of the plaintiffs herein.

BRIEF FACTS

The facts of this case admit of no controversy whatsoever. The Plaintiffs are a non-banking financial institution incorporated in and under the laws of Ghana. They were approached in their normal line of business by Ahaman Enterprises Limited, a haulage company for a credit facility, initially in the sum of GH¢30,000.00 to enable them execute contracts awarded them by the Ministry of Energy to haul electricity poles and other electrical materials from designated locations to various parts of the country under the National Electrification Project. In the course of time, the said Ahaman Enterprises Ltd, who were sued therein by the Plaintiffs in the High Court as 1st Defendants applied for further amounts of credit facilities from the Plaintiffs. As a condition for the approval of the credit facilities that the 1st Defendants therein requested from the Plaintiffs, the Plaintiffs required the 1st Defendants to secure a guarantee from the Ministry of Energy that payments due under the contract for the haulage of the electrical poles and other materials would be made in the joint names of the 1st Defendant and the Plaintiffs. Relying on the Ministry of Energy’s letters in support of each credit line facility applied for by the 1st Defendants, the Plaintiffs approved, advanced and disbursed various sums of money to the 1st Defendants as requested by them, pursuant to loan agreements executed between the 1st Defendants and the Plaintiffs on 26th August 2005 and thereafter in respect of all the credit advances, as per the offer letters dated 28th September 2005, 7th October 2005, 13th October 2005, 2nd February 2006 and 28th April 2006 all to the total sum of GH¢340,000.00, at an interest rate of 6.5% per month calculated at the end of each day and payable at the end of every month until the date of final payment.

It is the plaintiffs contention that, the Defendants he