NDK Financial Services v. REF Logistics Company Ltd and 2 Ors

On 22nd February 2013, the Plaintiff issued its writ jointly and severally againstthe Defendants claiming the sum of ¢12, 817. 38 together with interest at a monthlyrate of 5% per month from December 31st 2012 until the date of final payment.

The Plaintiff also prayed for an order of judicial sale of the 2nd Defendant’smortgaged property described as all that piece and parcel of land in extent of 0. 16acre and situate at Klagon in the Tema Municipal Assembly in the Greater AccraRegion of the Republic of Ghana.

The 1st and 2nd Defendants were served with the writ and statement of claim.

However, only the 2nd Defendant entered appearance and filed a defence to theaction.

The records indicate that the 3rd Defendant was not served at all.

Accordingly, the judgment would be in respect of 1st and 2nd Defendants only.

The 2nd Defendant in his defence whilst admitting that 1st Defendant a limitedliability company incorporated under the laws of Ghana had been granted a loanfacility and that 2nd and 3rd Defendants as Directors had guaranteed therepayment of the facility, averred that the interest exigible was simple ratherthan compound interest. The 2nd Defendant further proposed to pay off the loan in 8 monthly instalments.

The issues set down for trial were as follows: 1. Whether or not the interest chargeable on the loan granted 1st Defendant was at simple or compound interest? 2. Whether or not 1st Defendant was indebted to Plaintiff in the sum of GH¢12, 817. 38 as at 31st December 2012? 3. Whether or not the Plaintiff is entitled to the reliefs? In spite of several hearing notices served on the Defendants and their Solicitorfor 20th November, 28th November, 11th and 18th December 2013 they failed toshow up in court.

The matter proceeded to trial in the Defendants’ absence.

Theydid not participate in the trial although they were served with hearing notices andtherefore had notice of it.

In the case of Re: West Coast Dyeing and Another (1987/88) 2 GLR 561, the courtheld that when a party refused to attend the trial and to testify, the court wouldbe entitled to proceed with the trial and to determine the case on the basis ofevidence adduced.

It is further provided for in Order 36 r 1 (2) of the High Court Civil ProcedureRules (2004) CI 47 thus: 1.

1. Where an action is called for trial and a party fails to attend, the trial Judge may(a) where the plaintiff attends and the defendant fails to attend, dismissthe counterclaim, if any, and allow the plainti