SKYWAY TRAVELS LTD. v. GHANA COMMERCIAL BANK

JUDGMENT

ANINAKWAH J. A:

This is an Appeal against the Judgment of His Lordship Justice A. A. Benin J.A., sitting as an additional High Court Judge-Accra-dated the 31st May 2000.

The judgment dismissed the claim of the plaintiff/Appellant (hereinafter referred to as the Plaintiff) and the Defendant/Respondent hereinafter referred to as Defendants') Counterclaim against Messrs Isei Nsafoah and Sam Amfo Ayeh.

Entering the judgment the trial court allowed the Defendant an amount of ¢2,137,185.86 as owed by the plaintiff to the Defendant.

And as against Messrs Isei Nsafoah and Sam Amfo Ayeh this is what the Court had to say:— "But from whom is the Bank to recover its entitlement? The question becomes necessary in view of the parties to the Counterclaim. The Bank averred that Messrs Ayeh and Nsafoah, Managing Director and Director respectively of Skyways executed a guarantee by which they bound themselves jointly and severally to pay the Bank any sum that may become due and owing to the Bank by Skyways. The answer in the defence to the Counterclaim was that 'there is no merit whatever in the defendant's Counterclaim against the plaintiff in respect of a guarantee which was executed by persons other than the plaintiff. At the hearing it turned out that the guarantee that they executed in favour of the Bank was in respect of a guarantee Skyways needed to enable it remain in effective business; it was for a certain sum of money that the Bank guaranteed skyways.

I think it had nothing to do with the operation of its normal account with the Bank. In my view, the guarantee - Exhibit 2 cannot be relied upon to saddle Messrs Isei Nsafoah and Ayeh with responsibility for any debt owing by skyways outside the terms of the guarantee. I therefore enter judgment for the Bank to recover the sum of ¢2,137,185.86, together with interest at the prevailing Bank rate (GCB rate), from 1/11/93 to date of judgment, from Skyways. The rest of the claim and Counterclaim are rejected." The Defendant Bank has not filed any cross appeal and thereby deemed to have accepted the decision of the trial Court.

The plaintiff's claims as indorsed on the Amended Writ of summons filed in April 1999, long after plaintiff's representative Mr. Sam Amfo Ayeh had given his evidence in court on 16th May 1995 against the Defendant are for:-

"(a) ¢3,079,256.00 being the total sum with which plaintiff's account for 1990 was fraudulently or negligently debited by the defendant.

Interest on the said