BENJAMINE NTI vs. UTRAK CAPITAL MANAGEMENT LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
BENJAMIN NTI - (Plaintiff)
UTRAK CAPITAL MANAGEMENT LIMITED - (Defendant)

DATE:  13TH FEBRUARY, 2019
SUIT NO:  OCC 34/2019
JUDGES:  DR. RICHMOND OSEI-HWERE, J
LAWYERS:  GYASI JAWHARY (MRS.) FOR PLAINTIFF/APPLICANT
JENNIFER GYAMBEA FOR MARIAM AGYAMAN
JUDGEMENT

Before me is an application for an order of the court to enter summary judgment against the Defendant on the ground that the statement of defense discloses no defence to the action. The application is premised on Order 14 rule 1 of the High Court Civil Procedure Rules, 2004 (CI 47).

On 24th January, 2019, the Plaintiff/Applicant (hereinafter referred to as the Applicant) filed a writ of summons against the Defendant/Respondent (hereinafter referred to as the Respondent) for:

a.    A declaration that the Defendant has breached the investment management agreements dated 1st June, 2018 and 12th June, 2018 bearing Reference numbers UCML/BN/06-18/4492 and UCML/BN/06-18/4897.

b.    An order compelling the payment of the sum of One Hundred and Twelve Thousand Six Hundred and Twelve Ghana Cedis, fifty pesewas (GHC112,612.50) by the Defendant to the Plaintiff being the principal sum of One Hundred and Five Thousand Ghana Cedis (GHC105,000.00) invested by the Plaintiff with the Defendant and interest payable thereon under the investment management agreement afore-mentioned.

c.     Interest on the said sum of One Hundred and Twelve Thousand Six Hundred and Twelve Ghana Cedis, Fifty pesewas (GHC112,612.50) at the prevailing commercial bank lending rate from 1st September, 2018 till date of final payment.

d.    An order for the payment of the sum of Seventy-five thousand two hundred and fifty Ghana cedis (GHC75,250.00) being the principal sum of Seventy Thousand Ghana Cedis (GHC70,000.00) invested by the Plaintiff with Defendant and the interest payable thereon under the investment management agreement afore-mentioned.

e.    Interest on the said sum of Seventy-Five Thousand Two Hundred and Fifty Ghana Cedis (GHC75,250.00) at the prevailing commercial bank lending rate from 12th September, 2018 till date of final payment.

f.      Damages for breach of the investment management agreement entered into by the parties afore-mentioned.

g.    Costs including legal fees.

 

According to the applicant, the defence filed on behalf of the defendant does not reveal any defence to the claim and for that matter no useful purpose will be served by going into a full trial of the matter.

Counsel for the Applicant referred to the defendant statement of defence and denied that the applicant instructed the respondent to roll over his investment upon maturity. She referred to the investment agreements (i.e. Exhibits BN4 and BN5) and submitted that the agreements do not capture such terms. Counsel submitted that the applicant’s investment had matured at the time the action was instituted. She also submitted that upon maturity of applicant’s investment and prior to the instant action, the applicant had per Exhibit BN6caused his solicitors to write to the respondent requesting it to have the investment paid to him but the request was ignored.

 

The motion was duly served on the respondent but it failed or refused to file an affidavit in response. On the return date of the application, both the respondent and its lawyer were absent in court without any reason. The court had no option than to allow counsel for the applicant to move the motion.

 Order 14 rule 1 of CI 47 provides:

The legal principles relating to application for summary judgment are also settled in numerous judgments of the court which set out those principles.

An aggrieved person and his adversary have the right to access to court and with it the right to have their day in court. Hence case laws dictate that the court should only exercise its power to enter judgment without a trial provided the plaintiff can proof his or her claim clearly by affidavit evidence. The following conditions must, however, be fulfilled prior to the entry of summary judgment:

1.    The plaintiff must have served a writ and statement of claim on the defendant.

2.    The defendant must have entered appearance.

3.    It must be clear that the defendant has no reasonable defence to the action.

See Yartel Boat Building Co. v Annan [1991] 2GLR 11

 

In this application the burden is on the applicant herein to show to the Court that the respondent’s defence is so plain and obviously unsustainable or in other words, the statement of defence is outmoded at birth and bound to fail at trial. This principle is at the forefront in the consideration of this application.

From a cursory look at the contents of the statement of defence vis-à-vis the statement of claim, I hasten to conclude that it discloses no reasonable defence.

 

In the instant case, the writ of summons and statement of claim were issued on 5th November, 2019. The respondent caused an appearance to be entered on its behalf on 14th November, 2018. From Exhibits BN4 and BN5, the investment maturity dates were August 31, 2018 and September 11, 2018 respectively. This explains why the applicant’s lawyers authored the Demand Notice letter (Exhibit 6) on 2nd October, 2018. In the said letter, the lawyers demanded the payment of the applicant’s money within 7 days. Thus, Exhibit 6 alone satisfies the requirement of the 5-day notice to be given prior to any account withdrawal, as provided in the investment agreements. It is palpably clear from the affidavit evidence that the applicant has satisfied the condition precedent for the payment of his monies. It is, therefore, untenable for the respondent to suggest in its statement of defence that the investment has not matured. In view of this, I agree with the applicant that the respondent’s defence to the claim is a sham. It is also clear from the evidence on record that the applicant’s claim is sustainable.

 

Accordingly, the application succeeds. Summary judgment is hereby entered in favour of the plaintiff/applicant in respect of reliefs (a) to (f) of the writ of summons. Costs of GHC 15,000 awarded against the defendant/respondent.