• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  CAPE COAST - A.D 2017
  

ROBERT FRIMPONG NYANTAKYI - (Plaintiff/Appellant)

vs.

ABDUL HAMID SALAM - (Defendant/ Respondent)

JUDGMENT

---

HONYENUGA, J.A.

This appeal is against the Ruling of the High Court, Cape Coast dated the 28^th day of July, 2015. In the said ruling, the trial High Court dismissed the plaintiff/appellant’s (hereinafter called the appellant) application for summary judgment under Order 14 rule 1 of the High Court (Civil Procedure) Rules, 2004, (C.I. 47) as against the defendant/respondent (hereinafter referred to as the respondent).

 

The facts of this appeal are that the appellant is a former employee of the Agricultural Development Bank (ADB) and the respondent is a businessman in Cape Coast and a shareholder of Ghambassad Company Limited. The respondent was introduced to the appellant while an employee of ADB in Cape Coast. The said Ghambassad Company Limited had an account at the appellant’s ADB branch. Sometime in 2011, the respondent was introduced to the appellant by Fred Agyemang that he needed a loan and therefore he granted the respondent Ten Thousand Ghana Cedis (GH¢10,000.00). Later, the Manager granted Twenty Thousand Ghana Cedis (GH¢20,000.00) to the respondent as a loan until his company’s loan facility was processed. The appellant therefore granted a total of GH¢40,000.00 loan facility to the respondent to be repaid by the end of February 2012. However, by the end of March 2013, the respondent refunded GH¢4,000.00 leaving a balance of GH¢36,000.00 to be paid by the end of May 2013. The respondent also agreed to pay an interest of GH¢2.000.00 every month from June 2012 should he fail to pay the outstanding balance of GH¢36,000.00. The respondent later made a part-payment of GH¢15,000.00 into the appellant’s account but that money was found by the ADB to have been stolen by the Manager and given to the respondent. The appellant was rather made to refund the money to the ADB. Subsequent demand for the repayment of the loan of GH¢36,000.00 was met with a response from the respondent that he would only repay the loan when the ADB refunded monies embezzled from Ghambassad Company Limited account by some staff of the Bank. Unable to bear the response from the respondent, the appellant caused a writ of summons which was accompanied with a statement of claim which were later amended to be issued against the respondent, claiming as follows:-

“(a) Recovery of an amount of GH¢36,000.00 being an outstanding balance of a loan plaintiff granted to the defendant.

(b) An interest on the outstanding balance as in ‘a’ above at the prevailing bank rate from 1^st March 2012 till 31^st May 2012, and then an interest of GH¢2,000.00 per month onnthe outstanding balance as in ‘a’ above from the 1^st June 2012 till date of full and final payment.

(c) Any other just and equitable relief.

(d) Cost”.

 

The respondent entered appearance and filed a Statement of Defence which was later amended. The appellant also filed a Reply and stated inter alia that the respondent does not have a personal account with the Bank but that he is only a signatory to a company account. At the application for Directions stage, the following issues were listed and agreed:-

 

“a. Whether or not plaintiff gave an amount of GH¢40,000.00 of which defendant paid an amount of GH¢4,000.00 leaving an outstanding balance of GH¢36,000.00.

b. Whether or not defendant promised to pay plaintiff interest on the amount owed, should defendant fail to pay on schedule.

c. Whether or not monies plaintiff gave to defendant were taken from defendant’s own account with Agricultural Development Bank.

d. Whether or not plaintiff was dismissed from his appointment with Agricultural Development Bank due to his involvement in fraud perpetrated on defendant by officials of the Bank.

e. Whether or not plaintiff is entitled to his claims.

f. Any further or other issues raised by the pleadings in this suit”.

 

The matter was adjourned for hearing after the application for directions was taken and it was thereafter that the appellant applied and was granted an amendment which culminated into his filing an amended writ and the statement of claim. The appellant followed up with an application for summary judgment under Order 14 rule 1 of C.I. 47. The respondent also followed up by filing an affidavit in opposition and an amended statement of defence.

 

Upon hearing counsel for both parties, the learned trial judge on the 28^th day of July 2015, dismissed the application for summary judgment because a full trial was necessary to determine by evidence, the truth or otherwise of the actual amount extended to the respondent and to determine whether the amount was tainted with fraud. It is against this ruling that the appellant has appealed to this court praying that the ruling be reversed based on the following grounds:-

“(a) The ruling of the learned trial judge was against the weight of the affidavit evidence.

(b) Additional grounds will be filed upon receipt of the certified copy of the ruling of the Honourable High Court on the plaintiff/appellant’s application”.

 

No additional ground was filed and it is therefore considered abandoned.

 

Arguing the appeal, learned counsel for the appellant cited Alex Etoh Kwaku v Bridgette Ofosu Asabea 72 GMJ 68 at page 84-86 dated May 2014 on the role of an appellant and the appellate court when an omnibus ground of appeal was relied by an appellant. Counsel contended that the learned trial judge failed or neglected to give weight to Exhibit “RFN1”. Counsel further cited Poku v Poku 18 M.L.R.G. dated November 2008 to the effect that affidavit evidence must be subjected to the same standard principles like trials in ordinary civil cases. He referred to paragraph 6 of the affidavit in support of the application for summary judgment and contended that ADB is completely different from the appellant; and was not joined to the action. Counsel further contended that the respondent did not deny the Exhibit “RFN1” was his document and cited Ackah v Pergah Transport Limited 31 MRLG 28; at page 46 dated July 2010 that a transaction which was in writing by an agreement of the parties, extrinsic evidence was in general not admissible to vary the terms. Counsel stated that although the respondent did not plead and particularized fraud, the trial judge contrary to law relied on same in his ruling. Counsel referred to Order 14 rule 1 of C.I. 47 and cited Jessel MR dictum in Anglo-Hahan Bank v

Wells [1878] 38 LI 197 at 199, CA that Order 14

 

“is intended to prevent a man clearly entitled to money from being delayed, where there is no fairly arguable defence to be brought forward”

 

He also cited Yartel Boat Building Co. v Annan [1991] 2 GLR 11 at 14 on Order 14 and Sanunu v Salifu [2009] SCGLR 586; 590. In the record of appeal the trial judge conceded that the respondent owes the appellant and the reasons given by the respondent were not reasonable, yet he dismissed the appellant’s application.

 

Learned counsel for the respondent on the other hand, cited O.T.R. (GH) Ltd. v B. B. Motors [2006] 5 MLRG 33 CA that the burden is on the appellant to establish that the judgment is indeed faulty or contrary to the law and therefore the burden is on the appellant in this appeal to establish same. Counsel stated that a cursory look at the exhibits of the appellant show variations in the handwriting and Exhibit “RFN1A” did not indicate who gave the respondent the amount of Ten Thousand Ghana Cedis on 1^st November 2011. He contended that in paragraph 4 of the affidavit in opposition, the respondent denied any liability and in paragraph 23 of the Amended statement of defence the respondent admitted receiving only GH¢5,000.00 from the appellant but stated that it was part of the fraud perpetrated on him. Counsel further contended that fraud is a serious sin against the administration of justice and vitiates everything and therefore a judgment obtained through fraud can be set aside. Counsel stated that although the elements of fraud were not listed in the statement of defence, it was inherent within the case of the respondent. He cited Jonah v Duodu-Kumi [2006] 1 GMLR 105-106 that a matter could be determined even though it was raised at the last stage because it went to the root of the matter. He further stated that although the appellant exercised his right under Order 14 of C.I. 47, the respondent has proven that there is an issue to be tried and there is a reason for a full trial under Order 14 rule 5(1). Counsel submitted that the appellant’s appeal is unmeritorious and ought to be dismissed in limine.

 

Now, the sole ground of appeal was that the ruling of the learned trial judge was against the weight of affidavit evidence. By law, an appellant who complains that a judgment was against the weight of evidence on record, carries the onus of properly demonstrating to the appellate court the lapses in the judgment appealed against before the appellate court assumed its duty of examining the totality of the evidence before it and come to its own decision on the admitted and undisputed facts. In the recent case of Republic v Conduah; Ex parte Aaba (Substituted by) Asmah [2013-2014] 2 SCGLR 1032 which was an appeal from this Court, the Supreme Court succinctly delivered itself in headnote (2) as follows:-

 

“(2)The effect of an appeal on the ground that “the judgment is against the weight of evidence” was to give jurisdiction to the appellate court to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts. In the instant case, the appellant by that ground of appeal, was implying that there were pieces of evidence on record which if applied properly or correctly, could have changed the decision in his favour; or that certain pieces of evidence had been wrongly applied against him. The onus in such instance was on the appellant to clearly and properly demonstrate to the appellate court, the lapses in the judgment being appealed against. Akufo-Addo v Catheline [1992] 1 GLR 377 SC and Djin v Musa Baako [2007-2008] 1 SCGLR 686 cited”.

 

See also a host of respectable authorities which include Tuakwa v Bosom [2001-2002] SCGLR 61; Ayeh v Akakpo v Ayaa Iddrisu [2010] 1 SCGLR 891; Oppong v Anarfi [2011] 1 SCGLR 550 Holding (4) and Osei Assibey v Joyce Gbormittah & 2 Others [2012] 47 GMJ 91 SC.

 

In the instant appeal therefore, the principles as stated above would be applied accordingly.

 

The High Court’s jurisdiction to grant summary judgment is clearly stated in Order 14 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as follows:-

 

“Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim except as to the amount of any damages claimed”.

 

The essence of such summary procedure

 

“is intended to prevent a man clearly entitled to money from being delayed, where there is no fairly arguable defence to be brought forward”.

 

See Anglo-Indian Bank v Wells [1878] 38 LT 197 at 199 applied in Sanunu v Salifu [2009]

SCGLR 586, Ballast Nedam Ghana BV v Horizon Marine Construction Ltd. [2010] SCGLR 435. The basis of the procedure is that the defendant has no defence whatsoever to the claim in issue or that the available defence relates only to the damages claim. In Yartel Boat Building Co. v Annan [1991] 2 GLR 11 at 14, Kpegah J (as he then was) stated clearly the purpose of the principle in his dictum which was applied in Sanunu v Salifu [2009] SCGLR 586 as follows:-

 

“[Order 14] prescribed the procedure to be followed by a plaintiff who wishes to obtain summary judgment against his adversary. It does not confer on a plaintiff an absolute right to proceed to summary judgment in every case. Its purpose or aim to permit a plaintiff to obtain summary judgment without necessarily going to trial if his claim is clear and the defendant is unable to set up any bona fide defence, or create a situation indicating there are triable issues between him and the plaintiff”.

 

The procedure therefore is available to the plaintiff only where the statement of claim is complete and good in itself, as any defect or omission of a material fact or claim cannot be corrected, or supplemented by the supporting affidavit to the application. Further, the procedure is available only in clear cases where, on the facts and defence, if any, summary judgment may be entered without hearing the defendant in a full trial. The plaintiff may therefore utilize the procedure even where the defendant has filed a defence. See Atlanta Timber Co. v Victoria Timber Co. Ltd. [1962] 1 GLR 221. Unless the statement of defence or the affidavit in opposition raises a triable issue, the application for summary judgment must succeed. See Order 14 rule 3 of C.I. 47. In Sanunu v Salifu (supra), the Supreme Court held as follows:-

 

“Under 14 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a trial judge must come to the conclusion that on the face of the plaintiff’s claim there is no defence to the action. Thus a defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact”.

 

In the instant appeal therefore, I would examine the totality of the pleadings as filed and all relevant matters before the court and particularly look at any defence as filed whether they raise any triable issues in law and fact. The learned trial judge in refusing the application for summary judgment, had concluded at page 97 of the record of appeal as follows:-

 

“Whilst not finding the argument put up by the defendant that he would not pay the plaintiff any money until his Bank has investigated his said complaint made against the Bank and its staff a reasonable defence the express denial made by him in the said response to the plaintiff’s demand and which was repeated in paragraph 23 of the statement of defence that the only monies that were extended to him through the plaintiff was GH¢5,0000.00 and through similar circumstances as the other transactions raised triable issues as to whether the said amount was in fact the defendant’s own money manipulated as a loan to him. The truth or otherwise of the actual amount of money extended to the defendant by the plaintiff, and whether it was tainted with fraud cannot be determined upon the evidence available at this stage. A full trial is necessary therefore, and the motion for summary judgment is dismissed for the trial to proceed on the merits. The motion for summary judgment is dismissed”.

 

Was the learned trial judge right in dismissing the motion for summary judgment based on the above stated reasons? A perusal of paragraphs 8, 9, 10, 11, 12, 13, 14, 17 and 18 of the appellant’s amended statement of claim indicate the circumstances surrounding the respondent’s indebtedness to the appellant as follows:-

“8. Plaintiff avers that in all he gave the defendant a total amount of GH¢40,000.00 as a loan to be refunded when defendant approved the loan.

9. Plaintiff says that it was agreed that this money was to be repaid latest by the end of February 2012.

10. Plaintiff avers that as at the end of March 2013, defendant had refunded an amount of February 2012.

11. Plaintiff says that when he demanded repayment from the defendant, the defendant pleaded and promised to refund the balance of GH¢36,000.00 by the end of May 2013.

12. Plaintiff adds that the defendant agreed and promised to pay an interest of GH¢2,000.00 every month from June 2012 should he fail to refund the outstanding amount of GH¢36,000.00.

13. The plaintiff will contend that at the end of May 2012, the defendant failed to pay the amount owed as promised.

14. The plaintiff says that in June 2012, the defendant pleaded for more time, explaining that he was arranging for an overdraft from HFC Bank and when it was approved he would pay back the outstanding amount owed.

17. The plaintiff states that in or around December 2013, he wrote to defendant demanding repayment of the outstanding amount of GH¢36,000.00.

18. The plaintiff say in February 2014, the defendant sent a response to plaintiff that he would only pay plaintiff when Agricultural Development Bank refunded moneys embezzled from Ghambassed Company Ltd. account by some staff of the Bank”.

 

The respondent also filed an amended statement of defence and denied the claims of the plaintiff but admitted in paragraph 13 that he received GH¢30,000.00 and GH¢40,000.00 as follows:-

 

“13. The defendant insist that he received GH¢30,000.00 and not GH¢40,000.00”.

 

He averred that he dealt with the Bank Manager of ADB involving the GH¢20,000.00 and that the GH¢4,000.00 was paid to the same Bank Manager but not to the appellant. The respondent also averred that he only received GH¢5,000.00 through the appellant. The respondent accused the Branch Manager, the plaintiff and the staff off ADB for fraudulently manipulating his account for their benefit.

 

The appellant then filed the instant motion for summary judgment under Order 14 rule 1 of C.I. 47 praying for an entry of summary judgment for the amount of GH¢36,000.00 with interest as endorsed on the writ of summons with an attached affidavit in support and its annexures. In his attached affidavit the appellant in paragraphs 5, 6, 7, 9 and 10 stated clearly that the respondent owed him and he had no defence to his claim as follows:-

 

“5. That the defendant/respondent herein entered appearance and filed his statement of defence.

6. That the defendant has admitted owing me, the amount stated or the amended writ of summons. Attached and marked as exhibits “R.F.N.1” series are correspondences (documents) showing that the defendant/respondent herein has admitted liability for the debt he owed me.

7. That I have been advised and verily believe same to be true that the statement of defence filed by the defendant/respondent herein does not disclose any reasonable defence to my claims.

9. That I pray that this Honourable Court grants me summary judgment in respect of the amount of GH¢36,000.00 as stated on the amended writ of summons, and interest thereon at the prevailing bank rate from 1^st March 2012 till 31^st May 2012, and then an interest of GH¢2,000.00 per month on the outstanding balance of GH¢36,000.00 from 1^st June 2012 till date of full and final payment, as well as cost.

10. That I have been advised and verily believe same to be true that this Honourable Court has the power and discretion to grant me summary judgment against the defendant/respondent for the reliefs endorsed on my amended writ of summons”

 

The appellant attached various annexures or Exhibits to his application in proof of his case that the respondent took a loan from him and therefore indebted to him. I shall revisit these annexures later in this judgment.

 

The respondent filed an affidavit in opposition and I shall reproduce paragraphs 6, 7, 8, 9, 10, 11 and 12 as follows:-

“7. That at the said meeting, at which I was present, the management stated clearly that my account had been embezzled by the two and that I would be informed of the outcome of their investigations later. See Exhibit I attached.

8. That I have since written to the Bank to give me my current. Statement without success (see Exhibit 2 attached).

9. That I again write a reminder to the Bank to request for details of action taken in my early petition (see Exhibit 3, 3A, 3A, 3C attached).

10. That I also sent a follow up letter on my own checks about how the fraud on my account was perpetrated (see Exhibit 4 attached).

11. That when the case was first reported to headquarters the Branch Manager took specie from the Bank of Ghana and paid off the alleged indebtedness to the plaintiff restored my account but the auditors quickly intervened and reversed all the transactions including monies paid to the plaintiff.

12. That I have been advised and verily believe same to be true that I do not owe the plaintiff but that my own monies from my account was manipulated to seem as a loan to me”.

 

The attachments to the affidavit in opposition indicate that Exhibit 1 was a letter addressed to the Managing Director of Ghambassad Company Limited from the ADB’s Executive Head operations about irregular cash withdrawals and false transfer by the UCC Cape Coast branch. Exhibit 2 was a letter from the respondent’s Solicitor requesting for a Bank Statement directed to the Manager of UCC Branch. Exhibit 3 was a letter which was on the letter head of Ghambassad Company Limited and signed by the respondent as the Managing Director complaining about the delay in investigations about the irregularities in his bank account. Exhibit 3A was a letter on the letter head of Ghambassad Company Limited and signed by the respondent as the Managing Director calling for assistance from ADB because the company did not owe the Bank. Exhibit 3B was again a letter signed by the respondent on the letter head of the company to the Managing Director of ADB to release the amounts in the irregular withdrawals and false transfers to him to operate his filling station. Exhibit 4 was letter signed by the respondent on the letter head of the company requesting for action to be taken upon his complaint about the Branch Manager’s unlawful withdrawal of funds from the company’s account. It is noted that the respondent’s complaint in both his amended statement of defence and the affidavit in opposition is the alleged fraudulent acts committed on the company’s bank account by the Branch Manager of ADB and some of his staff including the appellant. It is further noted that in paragraphs 17 and 18 of the amended statement of claim, the appellant pleaded that he wrote to demand from the respondent the repayment of the loan but the respondent stated in his paragraph 20 of the amended statement of defence that he admitted his indebtedness but was waiting to hear from the headquarters about an alleged fraud before he would deal with the appellant and others. For avoidance of doubt I reproduce relevant paragraphs of the relevant amended statement of claim and defence as follows:-

 

“17. The plaintiff states that in or around December 2013, he wrote to defendant demanding repayment of the outstanding amount of GH¢36,000.00.

18. The plaintiff says that in February 2014, the defendant sent a response to plaintiff that he would only pay plaintiff when ADB refunded moneys embezzled from Ghambassad Company Limited account by some staff of the Bank”.

 

Paragraph 20 of the amended statement of defence stated as follows:-

 

“20. The defendant admits paragraph 17 and 18 and states that by December 2013, he was aware of the fraud using his account but was waiting to hear from ADB Headquarters before dealing with the plaintiff and the other former work colleagues”

 

Paragraph 20 of the Amended statement of claim is an admission of the appellant’s because whatever Bank account for the Company does not belong to him personally.

 

Furthermore, Exhibit ‘RFN1’ an acknowledgement of receipt of the loan of GH¢40,000.00 signed by both parties is a clear admission of the appellant’s claim by the respondent that he was indebted to him. I reproduce Exhibit “RFN1” as follows:-

“ 28/04/2013

ACKNOWLEDGMENT OF RECEIPT

I, Hamid Abdul Salam also known as Ghambased, the owner of the Goil filling station Mankessim have taken a total amount of Forty thousand Ghana Cedis (GH¢40,000.00) from Mr. Robert Frimpong Nyantakyi of ADB UCC Branch.

I have promised to pay the said amount by the end of May 2012. Should I fail to pay the amount stated, it will yield an interest of GH¢2,000.00 every amount from June 2012. This amount should be deposited into Robert’s account 141000033213902 at Lapaz Branch of ADB by 27^th of every month. However this said amount would be paid latest by august 2012.

Should I Hamid Salam fail to pay this amount by August as promise, Mr. Frimpong can take legal action to claim same.

 

Abdul Hamid Salam  Robert Frimpong

Nyantakyi”

 

Exhibit ‘RFN1D’, a letter written by Opoku Associates, Solicitors for the appellant wrote a Demand Notice to the respondent to pay the outstanding loan but acknowledged that the respondent had paid GH¢4,000.00 leaving an outstanding balance of GH¢36,000.00. The Solicitors for the appellant also demanded a total payment of GH¢74,000.00 which indicated the principal loan amount of GH¢36,000.00 together with interest. The rationale behind the invocation of Order 14 rule 1 of C.I. 47 is to permit a plaintiff to obtain summary judgment without necessarily going to trial if his action is clear and the defendant is unable to set up any bona fide defence or create a situation indicating that there are triable issues between him and the plaintiff. See Sanunu v Salifu (supra). It is therefore clear that by paragraph 20 of the amended statement of defence the respondent has admitted his liability to the appellant. There is also further evidence from the correspondence between the Solicitors for both parties and finally Exhibit ‘RFN1’ is a total admission of the loan taken by the respondent from the appellant and therefore the respondent’s complaint against the bank and its staff is unreasonable and unacceptable. The learned trial judge was therefore wrong in refusing to grant the appellant’s application for summary judgment.

 

Moreover, once incorporated a company becomes a distinct, separate and artificial legal person. This is the rule of separate legal personality as stated in the celebrated case of Salomon v Salomon & Co. [1897] AC 22 [1895-9] All ER Rep 33; which was cited with approval in Morkor v Kuma (East Coast Fisheries case) [1998-99] SCGLR 620 at page 632 by the Supreme Court and delivered by Sophia Akuffo JSC as follows:-

 

“Save as otherwise restricted by its Regulations, a company, after its registration has all the powers of a natural person of full capacity to pursue its authorized business. In this capacity, a company is a corporate being, which within the bounds of the Companies Code, 1963 (Act and the regulations of the company, may do everything that a natural person might do. In its own name, it can sue and be sued and it can owe and be owed legal liabilities. A company is, thus a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords clarified this cardinal principle more than a century ago in the celebrated case of Salomon v Salomon & Co. [1897] AC 22, it has, subject to certain exceptions, remained the same in all common law countries and is the foundation on which our Companies Code, 1963 is grounded”.

 

Further, in Owusu v R. N. Thorne Ltd and Another [1966] GLR 90, the second defendant R.N. Thorne was one of the directors of the first defendant limited liability company. The plaintiff/applicant sued both the company and the director and applied for an order against the second defendant to personally furnish security for appearance to answer such judgment against the defendant company. The court at page 91-92 dismissed the application thus:-

 

“What the court has to determine in this motion is whether R.N. Thorne personally or the Company is the first defendant in this case. The theory of legal personality of corporations has its own practical problems but it is clear that a Limited Liability Company or Corporation has legal existence apart from the directors and members and it is in a few recognized exceptions that law lifts the ‘Corporate veil” as it has been put, and looks to the directors and members personally. On the plaintiff’s own pleadings he sue R.N. Thorne Ltd. the first defendant and one other as the second defendant – the first defendant was the master of the second defendant. It may well be and undoubtedly is true that R.N. Thorne and his wife are the only directors of the company but he company exists apart from the directors and members. To hold that the directors are personally and the first defendants in this case will be defeating the doctrine of the separate existence of a limited liability company. The action is not against R. N. Thorne personally. I am not determining the liability of the first defendant as a company”.

 

See also Appenteng & Others v Bank of West Africa Ltd and Others [1961] GLR 199.

 

In the instant appeal, a perusal of the amended writ of summons the Amended Statement of claim, the Motion for Summary Judgment and its affidavit in support and its annexures indicate that the action was against the respondent in person. The action was neither against the Ghambassad nor the ADB. A further perusal of the Exhibits attached to the motion for summary judgment all seemed to have either been signed or addressed to the respondent. For instance the crucial Exhibit ‘RFN1’ which the respondent acknowledged and signed as having taken the loan from the appellant did not refer to Ghambassad Company Limited as such. This exhibit is crucial but the learned trial judge did not assess or give weight to it. The respondent did not deny the existence of this crucial exhibit and therefore deemed to have admitted same since he did not allege forgery or that it was fraudulently procured. In any case, the respondent’s defence that the Branch Manager and his staff including the appellant manipulated the Bank account of Ghambassad Company Limited and so he was waiting to hear from the ADB before dealing with the appellant is untenable. It is not disputed that Ghambassad Company Limited is a limited liability company which has separate legal personality distinct from the respondent albeit being a shareholder. The exhibits bear testimony to the fact that the respondent took the loan in his personal capacity and not in the name of Ghambassad Company Limited. The Bank account complained about by the respondent belonged to Ghambassad Company Limited which is even not a party to the action. It is therefore my finding and holding that the respondent had not raised any defence nor trial issues for the learned trial judge to have refuse to grant the application for summary judgment. It is trite that the findings of the trial court can be set aside if unsupportable by the evidence on record. In the instant appeal, the learned trial judge’s finding that it was only through evidence that the actual amount of money extended to the respondent by the appellant and whether it was tainted with fraud is wholly unsupportable by the evidence on record. This ground of appeal succeeds.

 

In conclusion, the appeal succeeds and the application for summary judgment is hereby granted based on the reliefs claimed. The Ruling of the High Court, Cape Coast dated the 28^th July, 2015 is hereby set aside with its consequential orders.

 

(SGD.)

C. J. HONYENUGA

(JUSTICE OF APPEAL)

 

(SGD.)

S. K. GYAN, J.A.                I agree                            S. K. GYAN

(JUSTICE OF APPEAL)

 

(SGD.)

G. S. SUURBAAREH, J. A.   I also agree   G. S. SUURBAAREH

(JUSTICE OF APPEAL)