WAPIC INSURANCE (GH) LTD v. DPS COMPANY LTD & MESUMA DELIMAN OSMAN
2016
HIGH COURT
GHANA
CORAM
- JENNIFER DODOO (MRS) JUSTICE OF THE HIGH COURT
Areas of Law
- Contract Law
- Suretyship and Guarantee
- Evidence Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiff, Intercontinental WAPIC Insurance Ghana Limited, claimed against the Defendants' recovery of GH172,092.69 due to a Surety Bond issue with Access Bank regarding Airtel Ghana's transactions. The court found in favor of the Plaintiff, ordering the Defendants to pay the claimed amount along with interest and costs.
JUDGMENT
The Plaintiff’s claim against the Defendants in its amended writ of summons filed on 10th June 2014 is for; the recovery of GH¢172,092.69 together with interest or in the alternative the judicial sale of all properties moveable and immoveable identified as belonging to the 2nd Defendant by virtue of the Personal Counter Indemnity executed in favour of the Plaintiff.
It was the Plaintiff’s case that it was a subsidiary of Access Bank (formerly Intercontinental Bank) licensed to conduct the business of insurance. The 1st Defendant was a limited liability company which had a right to market and sell Airtel Ghana’s mobile phone and services.
According to the Plaintiff, Access Bank in partnership with the Plaintiff had an origination deal in which the Bank would provide a bank guarantee in favour of Airtel against a possible default by distributors in repayment to Airtel Ghana for airtime lifted by the distributors of which the 1st Defendant was one. The Plaintiff as part of the transaction was to provide a counter guarantee to the Bank which it did in this case.
The Plaintiff stated further that the 1st Defendant also provided a Counter Indemnity dated 23rd February 2011 to indemnify it from and against all action, proceedings, damages, claims, costs, demands or expenses, which the Bank may suffer, incur or sustain by reason or on account of the Bank having given the Bank Guarantee and to reimburse the Plaintiff in respect of all payments, which may be made by the Bank in favour of Airtel Ghana Ltd. Additionally, the 2nd Defendant issued a Personal Guarantee in favour of the Plaintiff.
The Plaintiff contended that this guarantee was extended from February 2012 till April 2012. Due to the 1st Defendant’s inability to pay Airtel, the money owed, Airtel fell on the guarantee issued by Plaintiff to recoup its money.
The Defendants in their defence stated that the Bank unilaterally cancelled its guarantee with them thus throwing them out of business. They contended that the Plaintiff only provided insurance cover for the Bank Guarantee. Therefore aside of receiving insurance premiums from the 1st Defendant the Plaintiff had no dealings with the Defendants.
The issues settled for trial of this matter are:
1. Whether or not the Plaintiff is clothed with capacity to institute the present action?
2. Whether or not the 2nd and 3rd Defendants have been wrongfully joined to the suit?
3. Whether or not the Plaintiff provided the 1st Defendant with ins