As a result of police investigation the matter went to the Circuit Court who discharged the defendants on the grounds that this is a civil matter to be pursued in the civil courts and not in the Criminal Court.

Upon this decision of the Circuit Court, the plaintiff issued a writ in the High Court on 3^rd November, 2017 claiming the following reliefs;

a.    The amount of Eighty-eight Thousand Ghana Cedis (Gh¢88,000.00) being the sum of the plaintiff’s principal and accrued interest thereon.

b.    Interest on the said sum from 5^th July, 2012 to the day of final payment at the prevailing commercial bank rate.

c.     Costs

d.    Any other relief(s) that this honourable court may deem fit.

The defendants entered appearance to the summons on 20^th November 2017. The 2^nd to 4^th defendants upon entering appearance proceeded to file a motion on notice to have their names struck out as defendant on the grounds that the contract has plaintiff as lender and the 1^st defendant as borrower and that the defendants are not parties to the agreement.

They argued that they have been unnecessarily made parties to the suit and that the three defendants are distinct from the 1^st defendant. Overruling this objection, the learned trial judge found that the presence of all the defendants is necessary for the complete and final determination of the suit. She relied on the exceptions laid down in the case of Morkor vrs Kumah [1999-2000] 1 GLR at 721.

The plaintiff applied for summary judgment against the defendants which was granted by the High Court on the grounds that the defendants have no defence to the suit. The essence of Order14 is stated in rule 1 as follows;

Where in an action a defendant has been served without 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 the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed. See the case of Atlanta Timber Co. vrs Victoria Timber Company Ltd [1962] 1 GLR 221.

The purpose of the procedure under 14 is to enable a plaintiff who has specially endorsed his writ to obtain summary judgment without trial provided he can prove his claim clearly by affidavit. 

Clearly then for a judgment to be obtained summarily, the plaintiff ought to show that the defendant has no defence to the claim or that the defence is a sham.

Now before us is sufficient evidence that plaintiff/appellant reported the conduct of the defendant to the police who upon investigation found that the 1^st defendants is not licenced to operate as a financial institution. Also on record at page 76 is a letter from the bank of Ghana regarding the status of the 1^st defendant as follows “we write to inform you that the company, INTECELL INVESTMENT LIMITED has not been granted licence to operate as a Non-Bank Financial institution or a micro finance company as required by the Non-Bank Financial Institution Act, 2008 (Act 774). Our records further reveal that INTECELL INVESTMENT LIMITED has not submitted any application for a licence from the Bank of Ghana”.

It is patently clear that the company listed as 1^st defendant does not exist or has the mandate to do business as a financial institution. The defendants have signed cheques in favour of plaintiff as Acting Managing Director and accountant respectively. They have all the time presented themselves to plaintiff as directors/officers of a legitimate existing company. Now the bank of Ghana has disowned them. It is their duty to show that they are truly registered to operate as a financial institution which they have failed to do. They convinced the plaintiff to deposit his money with them. Under Section 26 of the Evidence Act, 1975 (Act 323).

It is stated that “Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that or the successors in interest of that party in proceedings between;

a.    That party or the successors in interest of that party, and

b.    The relying person or successors in interest of that person.”

The plaintiff/respondent dealt with the defendants upon their word and indeed proceeded to issue cheques in respect of accrued interest. The cheques were in the name of Intecell Investment but duly signed by Kudjo Anku as AG Managing Director and Jessie Maxwell Caleb as the Accountant.

In her judgment the trial judge applied the exceptions in Mokor vrs Kuma and entered judgment against the defendants for the undisputed amount claimed by the plaintiff. The attempts to detach themselves from the act of the 1^st defendant cannot be supported. It is true that the company is a body corporate which can sue and be sued in its own name but in the case before us there is no evidence that the company was ever licenced to do business. The company was clearly set up by the defendant for illegal purposes. Any piercing of the veil to find out those really behind the company is permissible. In the Mokor’s case the Supreme Court ruled that the lifting of the veil may be justified depending on the nature of the case when it ruled that.

“The corporate barrier between a company and the person which constitute or run it may be breached only under certain circumstances. These circumstances may be generally characterised as those situations where, in the light of the evidence, the state of justice, public policy or Act 179 itself so required”.