SINAPI ABA SAVINGS & LOANS LTD v. DUBAPHARMA CO. LIMITED & ORS
2015
HIGH COURT
GHANA
CORAM
- HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Banking and Finance Law
- Civil Procedure
- Contract Law
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case revolves around the Plaintiff Bank seeking recovery of post-maturity interest on a loan extended to the 1st Defendant with the 2nd and 3rd Defendants as guarantors. The 3rd Defendant did not file necessary pleadings, affecting participation. The court addressed issues of improper corporate representation and procedural lapses. Ultimately, it held that the Plaintiff is entitled to GH961.48 as interest accrued after the loan's maturity period, rejecting the Defendants' excuses for non-payment. The decision relied on statutory obligations under the Borrowers and Lenders Act and principles of contract law.
JUDGMENT
An action was commenced by the Plaintiff Bank against the Defendants herein for the recovery of the outstanding balance on a loan facility extended to the 1st Defendant, acting through the 2ndDefendant. The 2nd and 3rd Defendants were the guarantors under the loan agreement. By the time the trial commenced, the principal amount and interest up to the maturity date had been paid off, albeit long after the agreed due date. It is based on this fact that the Plaintiff is calling on the Defendants to pay the interest which accrued after the maturity date.
Even though the 3rd Defendant had been coming to court, it turned out that the writ of summons and statement of claim were only served on him just before the trial. Besides, the 3rd Defendant did not file any pleadings. This being a court of record, the filing of pleadings is mandatory. V.C.R.A.C. Crabbe J.S.C. underscored the functions and importance of pleadings in Hammond v Odoi (1982-83) GLR 1215 at 1235 thus:
“Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case…” See also Accra Tema City Council v Ntim (1969) CC 62, CA; Order 82 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and Tindana v Chief of Defence Staff (No. 2) (2011) SCGLR 732.
Having failed to file his pleadings, the 3rd Defendant cannot be said to have participated in this trial, for he has not set any case for the court to consider. Under the circumstance, the instant trial is between the Plaintiff, 1st and 2nd Defendants.
I wish to make certain observations before I proceed to consider the main issue before this court. I noticed that even though the 1st Defendant is a Limited Liability Company, an appearance was entered on its behalf by one Kwame Bonsu Poku who is not a lawyer. This sins against the provisions of order 4 rule 1 (2) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 which reads:
“A body corporate shall not begin or carry on proceed