ESTAARON VENTURES LIMITED vs PROTEUS LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2019
ESTAARON VENTURES LIMITED - (Plaintiff/Applicant)
PROTEUS LIMITED - (Defendant/Respondent)

DATE:  22ND MARCH, 2019
SUIT NO:  GJ/1140/2018
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  KWAKU OWUSU AGYEMANG FOR THE PLAINTIFF/APPLICANT
FELIX ANYINSAH FOR THE DEFENDANT/RESPONDENT
RULING RE: SUMMARY JUDGMENT

[1] This is an application by Plaintiff/Applicant herein praying that summary judgment be entered against the Defendant/Respondent for the reliefs endorsed on the Writ of Summons filed on July 20th, 2018 stated below as:-

a. An order directed at the Defendant to pay the sum of GH¢290,850 being the amount outstanding on the contract for the supply of iron rods to Defendant and due the Plaintiff.

b. The sum of GH¢93,072 being the interest accrued on the amount in paragraph (a) from August 2017 to April 2018.

c. Interest of 4% per month on the sum of GH¢290,850 from May 2018 to date of final payment.

d. Cost, including legal fees to assessed at 20% of the claim.

 

ii. The case of the Applicant:

[2] The grounds upon which the instant application is premised are catalogued in the original and supplementary affidavits accompanying the motion paper sworn to by Pat Kyei, the Secretary at the Law Firm of the Plaintiff’s Solicitors. The thrust of the Plaintiff/Applicant’s case is that the Plaintiff supplied to the Defendant specified quantity and specification of iron rods for which an amount of GH¢383,922 is still due and unpaid.

 

[3] It is further deposed that the Defendant’s Statement of Defence filed a copy of which is attached as Exhibit “A” is no defence at all. According to Plaintiff the only reason given by the Defendant is that it has not been able to make payment of the outstanding debt because the University of Education, Winneba with which it has a contract has been unable to pay the Defendant for some works executed by the Defendant.

 

[4] It is the case of the Applicant that the defence filed “is implausible and therefore no defence at all”. The Applicant has averred that the contract was entered into by the parties on June 19, 2017 and it attached a copy of the contract as Exhibit “B’. According to the Applicant “per clause 12 of the contract, the Defendant was required to pay for the goods one month after the delivery and the payment was not subject to any payment to be made by the University of Education, Winneba”.

 

[5] It is also the case of the Applicant that per the terms of the contract the Defendant was to issue post-dated cheques for the entire cost of the goods and though the cheques were issued the Defendant pleaded with the Plaintiff not to present same at the Bank when it was due. A copy is attached as Exhibit “C”.

 

[6] The Plaintiff has further deposed that based on the agreement signed by the parties it is clear that payment for the goods was not based on the receipt of any payment from the University of Education, Winneba. Further, the Plaintiff says the “Defendant upon admitting the claim of the Plaintiff in paragraph 6 of the Statement of Defence, the Defendant cannot raise a defence on the ground that it expects payments from another entity before it makes payment to the Plaintiff”. The Plaintiff attached as Exhibit “D”, a letter written by the Defendant dated April 25, 2017 to make its case.

 

[7] The Plaintiff filed a Supplementary Affidavit on December 10, 2018 to further speak to the Defendant’s indebtedness. According to the Plaintiff the parties orally agreed to the interest of 4% and the Defendant freely agreed to the said interest rate and duly acknowledged same in its letter dated April 25, 2017 attached as Exhibit “D” in this application.

 

[8] Speaking to the motion, learned Counsel for the Plaintiff/Applicant, Mr. Kwaku Owusu Agyemang conceded that the Defendant has filed a defence in the matter but referred to the pleadings and affidavit evidence before the court and submitted that the Defendant has no plausible defence and that the defence filed is a sham and only calculated to delay the suit. Learned Counsel further submitted that the contract between the parties is not contingent upon the Defendant receiving payments from anybody. Counsel further referred to clause 12 of the contract and Exhibit “D” to submit that the Defendant’s defence and the averments in the affidavit in opposition including the deposition that the agreement and interest are unconscionable are without basis.

 

[9] Mr. Owusu Agyemang further submitted that in the affidavit in opposition, the Defendant clearly acknowledges and confirms the interest and the total sum owed. To that extent Counsel submitted that based on the materials filed it is clear that the Defendant’s defence is based on impecuniosity and nothing else and therefore the Court’s powers to grant Summary Judgment is not fettered. His view therefore is that considering the totality of the pleadings, the Plaintiff/Applicant is not precluded from bringing this instant application. He is of the strongest conviction that the court has the inherent power to enter summary judgment under Order 14 of CI 47 at this stage of the litigation.

 

iii. The Defendant/Respondent’s Case:

[10] I note that the Defendant after being served with the writ of summons entered Appearance on August 14, 2018 through Counsel Felix G. Anyinsah Esq.and filed a defence on October 10, 2018. An Affidavit in Opposition to the instant application was also filed to contest the application. I further note that apart from some few variations, the affidavit in opposition contents are similar to the Statement of Defence filed and on the docket.

 

[11] In the Defendant’s Statement of Defence filed, it first denies almost every averment of the Plaintiff except the fact that he admitted paragraphs 2, 3, 4 and 5 of the Statement of claim. The Defendant contends that it indicated to the Plaintiff that “the High Tensil iron rods and other metals are meant for a project at the Winneba Site 2 for the GUESS Hotel”. According to the Defendant it has not intentionally refused and or failed to pay for the goods as agreed but there was a Court case against the University of Education, Winneba and so it affected the project for which it took the goods from the Plaintiff for.

 

[12] Further, according to the Defendant it has only delayed in paying the debt but has not neglected to pay same. At paragraph 6 it was averred that “Consequently Defendant has written to the Plaintiff to explain the situation and what Defendant is claiming from the Client (Winneba University) is necessary to pay off the outstanding indebtedness to the tune of GH¢383,922 owed to the Plaintiff”. The other averments which speak to the efforts being made to pay the debt are stated at paragraph 7 to 10 of the Statement of Defence and also in the affidavit in opposition filed.

 

[13] Speaking against the application Mr. Anyinsah submitted that the Defendant is vehemently opposed to the application because according to Counsel there are triable issues for the Court to determine. According to Counsel, the Applicant cannot deny the fact that the basis for entering into the facility was to carry out the project at the University of Education, Winneba. Counsel submitted that in line with that knowledge the Plaintiff delivered the goods/items for the project to the site at Winneba. According to Counsel the Defendant’s cash flow became affected because the University was sued.

 

[14] Furthermore, Learned Counsel submitted that the contract signed by the parties is unconscionable because the Plaintiff is benefitting from both the margins supplied and the interest and therefore the Defendant intend to amend its statement of Defence filed to raise that issue as it was only stated in the affidavit in opposition but not in the statement of defence. The Court notes that the issue of the unconscionability of the contract was only raised in the affidavit in opposition but not in the Statement of Defence filed. Counsel further submitted that the interest charged is compounded by the Plaintiff. The Court notes that Counsel for the Plaintiff denied that the interest is compounded.

 

[15] Based on all of the above, Counsel for the Defendant/Respondent submitted that there are triable issues and so the Court should refuse the application and set the matter down for trial.

 

iv. The Court’s Opinion and Analysis:

I start my analysis by posing the question:

Is the court precluded from entering a Summary Judgment because the Defendant has filled in the matter?

 

[16] To my mind, a moving party, in this case the Plaintiff herein by the instant application is attempting to establish that there is no “triable issue” or no “genuine issue of fact requiring a trial” and that it is entitled to judgment as a matter of law.

 

[17] As a matter of law, the Rules of Court do not permit that a summary judgment be entered under Order 14 with respect to:

a) probate, matrimonial or maritime proceedings;

b) a claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise of marriage; or

c) A claim or counterclaim based on an allegation of fraud.

See: Order 14 r 12 of CI 47.

 

[18] So the question is what are the parameters of Order 14 of CI 47 and under which circumstances shall judgment be recovered against the defendant or the defendant granted leave to defend generally?

It is provided in Order 14 Rule 1 as follows:

“1. Where in an action a defendant has been served with 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 particular part of such a claim or that the defendant has no defence to such a claim.”

 

[19] Recognizing, as I do, that the rule of law is that where a Defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair possibility that he/she has a bona fide defence he ought to be granted leave to defend generally, leave to defend must be given unless it is clear that there is no real or substantial question to be tried. See the Supreme Court case of JONAH v KULENDI & KULENDI (2013-2014) 1 SCGLR 272. So invariably, where the court cannot lend itself only to the affidavit evidence but will have to resort to viva voce evidence, an application for summary judgment under Order 14 is inappropriate and the application ought to be dismissed or refused.

 

[20] Further, in response to an application of this nature, the law requires that the defendant shall show cause that he/she has a good defence to the action on its merits or disclose such facts as may be deemed sufficient to entitle him defend the action generally. See Order 14 Rule 3(1) and the case of KEATING vs. HEMANS (1961) GLR 797-798.

 

[21] In a ruling delivered in this court on December 8, 2015 in Suit No. AP 208/2015 titled: Shaibu Amadu v HFC Bank Limited I did state that regardless of a defence filed though, a court of law has the inherent power to grant a summary judgment where the action does not fall within the general term of cases under rule 12 of Order 14. The caveat, however, is that from the pleadings and the affidavit evidence before the court, the judge ought to be satisfied that the defence is either a sham or was filed for purposes merely of delay. And also that it ought to be emphasized that the decision to grant a summary judgment is that of the court and it shall grant it if satisfied from the pleadings that the Applicant is entitled to it.

 

[22] Lord Justice Parker many years ago described with clarity, the nature of Order 14 proceedings in the case of HOME & OVERSEAS INSURANCE CO. LTD (In LIQUIDATION) (1983) All ER 74 at p.77 thus:-

“The purpose of Order 14 is to enable a Plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived the Plaintiff is entitled to judgment.”

 

[23] In our jurisdiction the Supreme Court pronounced on Order 14 per Sophia Akuffo JSC (as she then was) in SAM JONAH v LORD KUMI DUODU (2003-2004) SCGLR 50 when Her Ladyship postulated that:

“The objective of Order 14 ……is to facilitate the early conclusion of action where it is clear from the pleadings that the defendant has no cogent defence. It is intended to prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.

 

[24] From the above analysis it can be inferred from the principle established in the above cases that where the court is satisfied that the defence is not a good defence or does not disclose any reasonable or plausible defence and/or to be blunt a sham defence the court’s power to enter summary judgment is not fettered.

 

[25] In this case I have applied myself to the principles enunciated supra to the facts and exercised the inherent power to scrutinize the totality of the record in terms of the pleadings to determine whether or not the statement of defence on the docket and or the affidavit in opposition filed disclose any reasonable defence. Having regard to the pleadings particularly the statement of defence filed, I conclude that it was filed for mere purposes of delaying the trial. The statement of defence does not disclose any genuine, bona fide or plausible defence and it shall be sheer dissipation of this Court’s time to allow the case to take its normal course. The only suggested defence is that the Defendant Company is owed by the University of Education Winneba for the work done and that once it is paid it shall also fulfil its indebtedness to the Plaintiff. That defence in my respectful opinion cannot be the basis for denying the instant application.

 

[26] Undoubtedly based on the facts and a review of the Exhibits; in particular (Exhibit “B” and “D”), being the agreement signed by the parties and the letter authored by the Defendant to the Plaintiff it is clear that the Defendant has no reasonable, plausible or genuine defence to the claim. Also, by paragraph 6 of the statement of defence filed, the Defendant concedes the debt.

 

[27] Further, to leave no one in doubt as to what the letter dated 25 April 2017 says it is desirable to set out the contents of that letter. It is titled “ACKNOWLEDGEMENT OF PAYMENT DUE ESTARON VENTURES” and addressed to the Managing Director of the Plaintiff Company. It states:

“Proteus Limited wishes to acknowledge our indebtedness to you to the tune of Three Hundred and Eighty Three Thousand, Nine Hundred and Twenty Two Ghana Cedis only (GHS383,922.00) for the supply and haulage of various sizes of Iron Rods at the University of Education, Winneba Site 2 as per the below details:

Invoice Amount:

GHS 290,850.00

Interest accrued:

GHS 93,072.00

TOTAL:

GHS 383,922.00


Due to some financial challenges, we are unable to honour our obligation to you now but we hereby confirm that payments will be made to you when we get payment for contracts executed from our clients.

Thank you

Sincerely

(Signed for) Ali Olmez

(Managing Director)

 

[28] In my candid opinion, what the Defendant/Respondent appears to put across now is the reason behind its inability to pay back the debt to the Applicant. Interestingly by Mr. Anyinsah’s submission the Defendant/Respondent does not spare the Applicant of blame in its attempt to demonstrate why it has not been able to pay off the debt. It is now accusing the Applicant of entering into an unconscionable agreement etc. To my mind, it is clear the Respondent is seeking refuge in the common law principle of unconscionability of contract in its attempt to offer a legal defence to the suit/application even though the facts do not support the position. In my opinion the issue of unconscionability of the contract raised by Counsel is an afterthought and without any legal basis and it is therefore rejected by the Court.

 

[29] Further, in my respectful opinion the Defendant is simply engaged in a deliberate attempt at evading its legal obligations in regards to the debt owed to the Plaintiff. Therefore, this Court shall refuse to be the Defendant’s witting accomplice to its plan to abdicate or delay meeting its responsibilities in a business transaction. In the opinion of the Court the agreement signed and the above referenced letter (Exhibit “D”) clearly speak in an eloquent, candid and plaintive manner to the Defendant’s indebtedness to the Plaintiff.

 

v. Conclusion & Disposition:

[30] In Conclusion, I answer the question posed elsewhere in this ruling that, the fact that a Defendant has filed a Statement of Defence ought not stop a Plaintiff’s application for Summary Judgment just like this instant case. It is only where the said defence discloses a triable issue either in part of or the whole claim that entitles the defendant to defend generally. I am fortified in my position by the case of AFODOFE v CENTRAL INSURANCE INSURANCE CO. (1992) 2 GLR 207 at 213 where the learned jurist Acquah J (as he then was) postulated that if the totality of the pleadings and in particular the statement of defence discloses no defence in law, then notwithstanding the existence of a defence on the docket, the Applicant is entitled to summary judgment.

 

[31] Overall, I am satisfied that the Plaintiff is entitled to summary judgment because the Defendant has no valid defence to the claim. The law is now settled that where there can be no reasonable doubt that a Plaintiff was entitled to judgment it shall be inexpedient and serve no useful purpose to allow a Defendant to defend for mere purposes of delay. See: Jones v Stone (1894) AC 122 at p.124 and also: Sam Jonah v Lord Duodu-Kumi Supra.

 

[32] In the result, I uphold the submissions of Counsel for the Plaintiff and enter summary judgment for the Plaintiff for the reliefs (A) to (C) endorsed on the Writ of Summons. I shall however not grant the Plaintiff’s relief (D). This is because in my respectful opinion there is no legal reason based on the law, and in particular Order 74 of C.I. 47 for the assessing cost at 20% of the claim.

 

[33] I see that the Plaintiff paid Gh1,140.00 for the filing of the writ of summons Gh90.00 for the filing of the instant application and another Gh20.00 when a search was conducted. Taking all that into consideration and looking at the various adjournments many of whom were at the instance of the Defendant together with the factors I am to consider under Order 74 of C.I. 47 I shall assess the Plaintiff’s Cost to be at Gh7,000.00.

 

Accordingly ordered.