W.B. IMPEX LIMITED vs HON. BABA JAMAL & AMINU SOWDOGOR IBRAHIM
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2019
W.B. IMPEX LIMITED - (Plaintiff/Applicant)
HON. BABA JAMAL - (Defendants/Respondents)
AMINU SOWDOGOR IBRAHIM - (Defendants/Respondents)

DATE:  21ST JUNE, 2019
SUIT NO:  AC/769/2015
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  PETER ZWENNES FOR THE PLAINTIFF/APPLICANT CARLOS
DE-SOUZA FOR THE DEFENDANTS/RESPONDENTS
RULING

i. Introduction:

 [1] By a writ of summons issued on July 22, 2015 the Plaintiff claims against the Defendants jointly and severally the following reliefs:

Payment of the sum of One Hundred and Thirty-Nine Thousand Six Hundred and Twenty Nine Dollars Fifty Cents (US$ 139, 629.50) or its cedi equivalent being an outstanding debt due and owing from the Defendants to the Plaintiff Company per the Credit Sale Agreement executed between the parties on or about the 27th day of January 2014 and then 4th day of March 2014 respectively.

Interest on the said amount US$ 139, 629.50 the rate of 5% compounded as specified in the Credit sale Agreement from the 15th day of June 2015 till date of final payment.

An order of this Honourable court for seizure and preservation of the Foton Tipper Truck with Registration Number GT6390-14 and the Kinglong Bus Registration Number GT4977-14 pending the final determination of this action.

Costs.

Any further or other reliefs.

 

[2] The Plaintiff has brought the instant motion for Summary Judgment on the grounds that the Defendants are truly indebted to the Plaintiff and they have no defence to the action. The Defendants are praying the Court to dismiss the application on grounds of prematurity. The Defendants further say that there are triable issues for the Court to resolve. According to them the issues cannot be resolved in this application because the Court ought to hear from the parties in order to understand and appreciate the evidence in order to do justice to the parties.

 

[3] In contrast, the Plaintiff says that it is the Defendants who are using the Court system to evade meeting their contractual responsibility. The Plaintiff contends that this case can be resolved solely on the basis of the affidavit evidence and the pleadings. The Plaintiff says that there is no need for time-consuming and expensive trial in view of the Defendants’ initial position which led to the reconciliation of the parties’ account.

 

[4] The Supreme Court per Sophia Akuffo JSC (as she then was) laid out the law in the case of SAM JONAH v LORD KUMI DUODU (2003-2004) SCGLR 50 with regards to summary judgment pursuant to Order 14 of C.I. 47 to be 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.”

The question then is, is this an appropriate case for summary judgment?

 

[5] The grounds upon which the instant application is premised are catalogued in an initial 7 paragraph supporting affidavit of Robert Tang Weng accompanying the motion paper. The thrust of the Plaintiff/Applicant’s case is that the Applicant entered into a Credit Sale Agreement with the Respondents on January 27, 2014 for the sale of two vehicles in the amount of $164,000 as stated in the agreement signed. As per the agreement the purchaser was Aminu Sowdogor Ibrahim of Akwatia and the guarantor was Baba Jamal. Also, per the terms of the agreement the sale as per the quotation was “US$40,983.60 (GH¢100,000.00USD RATE 2.44) Down payment, BAL is US$123,016.40. In 12 monthly installments of US$10,251.40+$600.00 – each month, or Cedi equivalent at the date of payment, the first starting one month after delivery of vehicle”. A copy of the Credit Sale Agreement including hand writing notes, Driving Licence and the Business Card of the 1st Defendant who was an MP and a Deputy Minister at the time of the agreement were tendered as Exhibit “A”.

 

[6] It is the further case of the Applicant that the 1st Defendant made a Written Authorisation dated 27th January 2014 on his business card to authorize the transaction. A copy of the card is marked as Exhibit “B” to the application. Also, attached as Exhibit “C” was a hand written undertaking signed by both Defendants on 3rd September 2014 and the promise to pay the monthly instalment “from end of September 2014”. In further support of its case, the Plaintiff attached a letter from Gaisie Zwennes Hughes & Co Solicitors titled “Re: Final Demand Notice for Repayment of Debt” as Exhibit “D”. A Police Accident Report was also attached as Exhibit “D1”.

 

[7] The deponent further averred that that “I am advised by Counsel and verily believe same to be true that the Defendants are justly and truly indebted to the Plaintiff/Applicant and that they have no defence to this action. As such the Plaintiff/Applicant is entitled to Summary Judgement in the circumstances”.

 

[8] By a Supplementary Affidavit filed on April 18, 2019 and sworn to by the Applicant’s Counsel the Applicant filed Exhibit ‘E” being a Discharge Voucher and Cheque. It was deposed that at the time of filing of the affidavit the Applicant inadvertently omitted to attach the said exhibit.

 

ii. Affidavit in Opposition:

[9] The Defendants entered Appearance on August 12, 2015 but did not file a defence.

Shortly thereafter the instant application for Summary Judgment was filed by the Plaintiff. After a long delay the Plaintiff/Applicant filed a Notice of Intention to Proceed and served same on the Defendants’ Counsel. Shortly thereafter the Defendants filed a joint Affidavit in Opposition to the Application for Summary Judgment on June 21, 2017. The affidavit was deposed to by the 1st Defendant. It was deposed that the Defendants are opposed to the application but admitted the attached “exhibits A and D to the application. In general opposition, the Defendants said they “vehemently dispute the amount claimed by the Plaintiff/Applicant in their writ of summons and the present application”. The Defendants also deposed that “all attempts by the Defendants/Respondents to get the Plaintiff/Applicant to provide them with a Statement of Accounts to ascertain their true indebtedness have failed”.

 

[10] The Defendants/Respondents further deposed that the fact that the Applicant did not attach any statement of account to the instant application is proof that the claim for US$139,629.50 or its Cedi equivalent cannot be justified. The Defendants further deposed that “they have made substantial payments to the Plaintiff/Applicant’s which shall be revealed if a Statement of Account is provided by the Plaintiff/Applicant”. The Defendants attached as Exhibit “A” photocopies of receipts of some payments made to the Plaintiff by the Defendants.

 

[11] It was further deposed that “the Defendants/Respondents say that it is only after a proper account has been undertaken that their true indebtedness can be ascertained, as the amount by the Plaintiff/Applicant in their Writ of Summons is far in assess (sic) of their true indebtedness”. It was therefore deposed that “there are issues that require interrogation and can only be resolved through trial”. The Defendants therefore prayed the Court to dismiss the application.

 

iii. The Order for Account:

[12] Based on the depositions above, the Court per the agreement of the parties on July 10, 2017 appointed the Director of Finance, Judicial Service or his designate as a referee to reconcile the accounts of the parties and to determine the true indebtedness of the Defendants. Per the records the Plaintiff filed its Statement of Account at the registry of the Court on September 7, 2017 and the Defendants also filed their Statement of Accounts on September 19, 2017. Mr. Charles Idan, the Deputy Director of Finance the Judicial Service undertook the task and filed his report on January 15, 2018 at the registry of the Court. The record further shows that on April 3, 2019 after many adjournments Mr. Idan tendered the report in Court and same was admitted as Exhibit “CE1”. Counsel for the parties had the opportunity to cross-examine the referee.

 

iv. The Defendants’ Statement of Defence:

[13] On March 19, 2019 the Defendants filed their Statement of Defence. The Court notes that they did not seek the Court’s leave but same has been admitted. In the Statement of Defence filed the Defendants admitted paragraphs 1,2,3,4 and 5 of the Statement of Claim. They also admitted part of paragraph 6 but stated that there were aspects of the agreement which were “verbally and mutually agreed between the parties in furtherance of the agreement”. According to the Defendants these included the fact that the quarterly servicing of the vehicle should be done by the supplier at the cost of the purchaser and also the sole supply of spare parts and repairs of the vehicle should be done by the supplier at the cost of the purchaser.

 

[14] The other averments of the Defendants are “that even though there was a clause in the Agreement for the deposit of cheques for payment, it was verbally and mutually agreed between the parties that whatever amount the Defendants were able to gather in the month should be paid to the Head office”.

 

[15] The Defendants further averred at paragraph 5 0f the Statement of Defence that the “Defendants deny paragraph 8, 9 and 10 and states that Plaintiff came for the Tipper truck for repairs but after the repairs Plaintiff refused to release the truck until defendants made some down payments to cover the sales of the month preceding the tipper truck developing faults hence the undertaken by the Defendants”.

 

[16] The Defendants further pleaded at paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 as follows:

6. Defendants say that, the Plaintiff Company came for the tipper when it had a problem at the Asamankese police station due for lack of proper papers and it was the 1st Defendant who has to call the Plaintiff to inform them about it.

7. Defendants say that it is not true that the Plaintiff company made any attempts to reposes the bus and failed, because the bus at all material times was available and in the possession of the 1st Defendant.

8. Defendants vehemently deny paragraphs 11 and states that the Kinglong bus had an accident on the 21st October 2014 and the Plaintiff Company was informed of it at their Head office.

9. That all attempts to get the papers covering the Bus from the Plaintiff Company to be able to have the Insurance Company pay for the damage failed. Rather the Plaintiff insisted the Defendants tow the bus to their yard for them to handle the insurance issues themselves.

10. The Defendants towed to the bus to the Plaintiff’s yard and the bus has been in their possession since November 2014.

11. Defendants state that they continued to pay for the installments of the Tipper truck until the tipper developed a fault in April 2017 at Kade in the Eastern Region. The Plaintiff Company was informed about this but they have refused to come and inspect the Tipper truck and assess it for repairs.

12. Defendants aver that the Plaintiff Company is aware of the whereabouts of the two vehicles.

13. Defendants deny paragraph 12 and states that after the first demand letter was issued to the Defendants, the Lawyers of the Plaintiff and that of the Defendants met on two occasions to attempt to settle this matter. The figures involved in terms of the debt were the central issues that made it difficult for the parties to resolve the matter.

[17] The Defendant further pleaded in the penultimate paragraph of the Statement of Defence that the Plaintiff instituted this action because of the difficulty in arriving at the actual amounts involved in the disagreements with the Defendants over their indebtedness.

 

[18] As the record shows the instant application was filed in September 2015 and the affidavit in opposition was filed in June 2017, in March 2019 when the Defendants filed their Statement of Defence they also filed a Supplementary Affidavit to among others say that the Court Appointed Referee Charles Idan did not consider their input in writing his report. They cited a letter they attached as Exhibit “D2” being a letter dated Frbruary 28, 2019 sent to the Referee by which they raised certain issues for his consideration. They also contend in the Supplementary Affidavit that the Tipper Truck had been off the road since April 2017 but same was not considered in the report. They also reiterated the fact that they have been making payments by instalments but same was not considered in the final report etc.

 

[19] The Court notes that upon the receipt of the Statement of Defence the Plaintiff filed a document titled “Affidavit of Plaintiff in Response to Matters Raised in Defendants Statement of Defence and Supplementary Affidavit filed on 19/03/2019”. In the said affidavit filed on April 12, 2019 the deponent, Robert Tank Weng responded to the averments in the statement of defence and the supplementary affidavit and in effect implored the Court to ignore what he called afterthought attempt by the Defendants to create grounds for a trial when indeed there are no triable issues.

 

v. Arguments of Counsel:

[20] Arguing the motion, learned Counsel for the Plaintiff/Applicant, Mr. Peter Zwennes referred to the affidavit evidence before the court as well as the pleadings and submitted that the Defendants have no plausible defence and that the defence filed is a sham and only calculated to delay the suit because the Defendants have defaulted persistently of the credit sale agreement they signed with the Plaintiff.

 

[21] Counsel submitted that there are no triable issues for the matter to go to trial because according to him the exhibits speak for themselves based on the documents filed. Responding to the affidavit in opposition filed in particular paragraphs 9-13, Mr. Zwennes submitted that the Defendant are not disputing the claim itself but only the quantum. According to him the Defendants contended their “true indebtedness” – and therefore called for account reconciliation. Counsel referred to Exhibit ‘CE1”, the referee’s report and submitted that the report answers the Defendants’ true indebtedness.

 

[22] Mr. Zwennes further submitted that contrary to the Defendants earlier position, after the account reconciliation which they called for, the Defendants are now attempting to denigrate their indebtedness by presenting a letter dated February 28th, 2019 to further make their case. Counsel submitted that the letter should be ignored because the auditor completed and filed his report in January 2018. In further response to the Defendants contention that they did not have the opportunity to appear before the referee, Counsel submitted that having submitted their documents, they did not have to appear before the auditor so their affidavit that there are triable issues should be dismissed. Counsel also submitted that if the Court is minded to take into consideration the amount paid by the insurance company further to the accident, the Plaintiff shall have no objections to that. Based on all of the above, Mr. Zwennes prayed the Court to grant the application for summary judgment.

 

vi. Arguments in Opposition:

[23] In opposing the application, learned counsel for the Defendants/Respondents relied entirely on the Statement of Defence and the Affidavit in Opposition and the Supplementary Affidavit filed to submit that the application should be dismissed because there are triable issues. Mr. De-Souza submitted that the affidavit filed after the statement of account shows that there are triable issues. He however called on the Court to ignore the Plaintiff’s “Affidavit in Response to the Statement of Defence” because it is not proper. Counsel submitted that an affidavit cannot be used to respond to a statement of defence. According to Counsel the proper procedure was for the Plaintiff to file a reply.

 

[24] Counsel further submitted that the Plaintiff withheld certain information from the referee when they filed the accounts. For instance Mr. De Souza submitted that the Plaintiff did not inform the Court appointed auditor about the accident and the payment of insurance until the Defendant raised same in their affidavit. Also, Counsel submitted that the auditor should not have made certain determination especially certain oral agreements made to the agreement.

 

[25] Finally, Counsel submitted that by the Defendant’s affidavit issues including the allegations of negligence etc. can only be determined by a Court of competent Jurisdiction after a trial and not in a summary judgment. Counsel further submitted that the Defendants are not running away from their indebtedness but they take the position that there are triable issues and the Court should set the matter down for trial. To that extent, Counsel prayed the Court to dismiss the instant application.

 

vii. Analysis and Opinion of the Court:

[26] It is desirable at this stage to resort to Order 14 Rule 1 of CI 47, which the Plaintiff/Applicant seeks to leverage. It provides:

“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, except as to the amount of any damages claimed.”

 

[27] Importantly, I need to reiterate the rule that the Court is not precluded from entering summary judgment in appropriate cases even where the Defendant has filed a defence. This is because by simple interpretation of Order 14 Rule 1, the Court can only come to a conclusion as to whether or not a Defendant has a defence to a claim or part of it if the latter has filled a Statement of Defence to the Plaintiff’s claim. Also, the 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 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 1995 White Book Vol. 1 @ page 157).

 

[28] Applying the law, in my considered opinion, before granting an application for Summary Judgment, from the pleadings and the affidavit evidence before the court, the judge ought to be satisfied that the defence filed is either a sham or was filed as an afterthought merely to create an impression to the Court that there is a defence to the action and its main purpose is to delay the momentum of the action and also that the facts are not disputed.

 

[29] I wish to state that this Court is very much aware and indeed mindful of the fact that a Defendant/Respondent to such an application at bar is not bound to show a good defence on the merits and therefore it would be wrong for me sitting as a judge to try the merits of the case on the affidavit evidence placed before me even if I think that the Defendant might at the trial not succeed in the defence put up. If for nothing at all I have to grant the Defendant leave, possibly conditional leave to defend the action. What I should not do is to refuse the leave to defend in its entirety. See the unreported civil appeal case of- ALEX BROBBEY v. AKWASI ADDAI, Civil Appeal No. 176/1999, CA. and also the Court of Appeal in SADHWANI v. AL-HASSAN [1999-2000] 1 GLR 19 and the Supreme Court case of SUMAILA SANUNU v. FRANKLIN GADO SALIFU [2009] SCGLR 586. From the above it is clear that both the Court of Appeal and the Supreme Court recognized that not every case is amenable to a summary judgment application, and that position seems to be at the heart of the Defendant’s contention herein.

 

[30] But, as stated by the Supreme Court in SAM JONAH v LORD KUMI DUODU SUPRA the objective of an Order 14 application among other is to prevent a Plaintiff from being delayed when there is no fairly arguable defence to be brought forward. In my view the apex Court went on in greater detail to describe those cases where a trial is not required to resolve the litigation.

 

[31] Having studied the writ of summons, the instant application, the initial affidavit in opposition filed and the statement of defence filed few months ago, I am of the respectful opinion that the record built through the affidavit and the affidavit in opposition at the early stage of this litigation rather offer a better understanding and appreciation of the main issue in the case than the later defence filed. In my opinion and with respect to the Defendants, the defence filed seems to be an afterthought to their initial opposition to the application, and the purpose is to create the impression to the Court that there are triable issues in this case. Why do I say so?

 

[32] As indicated above, the instant application was filed on September 8, 2015 and same was served on the Defendants after they had entered appearance on August 4, 2015. On June 21, 2017 they filed an Affidavit in Opposition. The 15 paragraph affidavit was deposed to by the 1st Defendant, Baba Jamal who said he had the authority of the 2nd Defendant. To my mind paragraphs 9 to 13 of the affidavit in opposition are instructive. I can only reiterate what was said and stated earlier in this decision. The 1st Defendant deposed that in general response to the writ of summons and the instant application the Defendants dispute the amount claimed. He also deposed that the Defendants have not obtained accounts statements from the Plaintiff despite efforts made. The Defendants then deposed that they have made substantial payments which “shall be revealed if a statement of account is provided by the Plaintiff”. The Defendants said they disputed the amount of US$139, 629.50 claimed by the Plaintiff.

 

[33] The 1st Defendant deposed at paragraph 13 that “the Defendants/Respondents say that it is only after a proper account has been undertaken that their true indebtedness can be ascertained, as the amount quoted by the Plaintiff/Applicant in their Writ of Summons is far in assess (sic) of their true indebtedness”.

 

[34] As further indicated above, based on the above position the Court on July 10 appointed the Finance Director of the Judicial Service as the referee to reconcile the accounts of the parties and ordered the parties to submit their accounts statements to the referee. On September 7, 2017 the Plaintiff filed its documents and on September 19, 2017 the Defendants also filed their documents at the registry and same was submitted to the referee.

 

[35] The referee, Mr. Idan in his report filed on January 15, 2018 concluded that whereas the Plaintiff indicated that the Defendants’ indebtedness was US$125,105.41 the Defendant stated their indebtedness to be US$102,441.32 given a “reconcile difference of US$22,664.09”. After reconciling the account, the referee concluded that the Defendants debt as of July 31, 2017 was US$104,710.71. The referee tendered his report to the Court and was cross-examined by Counsel for the parties.

 

[36] The Defendants on March 19, 2019 then filed a statement of defence together with a Supplementary Affidavit to raise fresh matters and on the strength of that now say there are triable issues. As indicated above, whilst the law is that I cannot resolve the conflict of the parties based on the affidavit evidence, I am also of the view that a party to a suit should not be allowed to use the legal process as an unwitting accomplice in its bid to abdicate or delay meeting its responsibilities in a business transaction.

 

[37] In this case I note for instance that in the supplementary affidavit filed the Defendants attached Exhibit D2 being a letter dated February 28, 2019. It was supposedly sent to the referee to consider certain issues for his report. As stated above the report was filed on January 15, 2018. What it means is that the said letter was sent 13 months after the report was filed in Court. I also note that even though the Defendants are represented by Counsel, curiously that letter was signed by the Defendants themselves. In any case I have placed no weight on that letter because all the issues raised supposedly occurred in 2014 and before the Defendants submitted their documents to the referee after the referee was appointed by the Court in July 2017. The question is why did they not provide that information at that time to him?

 

[38] Having considered all of the facts and taking all of the above into consideration and applying the principles enunciated supra to the facts at bar and having exercised the inherent power to scrutinize the pleadings and to determine whether or not the Statement of Defence on the docket discloses any plausible defence, I hold the respectful view that though it would be improper to deny the Defendants at least a conditional leave and the opportunity to be heard on the issues raised in the defence filed almost four years after the filing of the suit, in my view the Plaintiff is entitled to judgment on the debt the referee’s report concluded the Defendants had admitted based on the accounts they submitted to him.

 

viii. Conclusion:

[39] In my respectful opinion the sworn affidavit which led to the appointment of the referee to reconcile the accounts of the parties speaks plainly and eloquently such that there is no ambiguity to the Defendants’ position. The Defendants deposed that only account reconciliation would show their true indebtedness. Therefore, based on the above analysis, I hereby enter judgment pursuant to Order 14 Rule 5 of C.I. 47 and also invokes the Court’s inherent jurisdiction to do so in the amount of US$104,710.71 which according to the referee is the debt owed by the Defendants after the reconciliation of the accounts less the insurance payment received. See the Supreme Court case of OPOKU & OTHERS (No. 2) v. AXES CO LTD (No. 2) [2012] 2 SCGLR 1214.

 

[40] With regards to the other remaining balance and the other reliefs such as interest etc., I hereby order that the Plaintiff to take out an application for directions within two weeks so that the matter could proceed to trial expeditiously for the consideration of the other matters

 

[41] Before I conclude I wish to state that in my view the objection raised by the Defendants that to the Plaintiff’s Supplementary Affidavit in response to the statement of defence filed is sustainable at law. An affidavit is not the mode to respond to a deposition in a statement of defence. The Plaintiff is a liberty to file a reply but not an affidavit. This is to confirm that I did not consider the depositions in the said affidavit in my analysis for this decision.

 

 

 

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