SHIELD MICROFINANCE vs NANA KUMI KORSAH & KONASAH GHANA LTD & SDC FINANCE LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    ACCRA - A.D 2019
SHIELD MICROFINANCE - (Plaintiff/Applicant/APP)
NANA KUMI KORSAH AND KONASAH GHANA LTD - (Defendants/Respondent)
SDC FINANCE LIMITED - (Interested Party/Respondents)

DATE:  16TH APRIL, 2019
SUIT NO:  GJ/75/2019
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MR. ALEX OSEI OWUSU WITH OHENEBA ADUSE POKU FOR THE PLAINTIFF MR. RENE EBOW ADU JNR. FOR THE INTERESTED PARTY MR. KWESI OPEKU – FOR THE DEFENDANTS
RULING

 

i. Introduction

[1] There are two (2) applications before this court namely: a) Application for Judgment in Default of Defence and; b) Application for the Preservation of Funds/Mareva Injunction filed on 20th December, 2018 and 19th October, 2018 respectively. Due to time and space constraints, and also for convenience, I discuss and determine both applications in this Ruling. Foremost, I deal with the application for Judgment in Default of Defence since that was first to be argued by Counsel at the Court’s direction.

 

[2] By a motion on notice filed by A.K. Osei-Owusu Esq. Counsel for the Plaintiff/Applicant, the Applicant is praying this Court to enter final judgment in default of Defence against the 1st and 2nd Defendant on the grounds as contained in the accompanying affidavit.

 

ii. The Applicant’s case

[3] The thrust of the Plaintiff/Applicant’s case as set out in the affidavit accompanying the motion is that the Plaintiff commenced an action on 19th October 2018 against the Defendants jointly and severally. The reliefs endorsed on the Writ of Summons are as follows:

a) An order to recover from the Defendants an amount of GH¢1,480.000 (One Million Four Hundred and Eighty Ghana Cedis) which Defendants owe to the Plaintiff.

b) An order compelling the Defendants to indemnify Plaintiff of its further losses by paying agreed commercial interest of 35% per annum accruing on the amount from the due date to date of final payment.

c) An order to the Defendants to pay damages to Plaintiff for breach of contract.

d) Cost on full indemnity basis to the Plaintiff.

e) Further (other) orders as the Court may deem fit.”

 

[4] From the Court’s record the Defendants were served with the Writ of Summons on November 9, 2018. An Entry of Appearance was entered on behalf of the Defendants by Victor Kwesi Opeku, Esquire of F-X Law & Associates located at Nii Noi Kwame Street, Dzorwulu, Near Peter Pan Restaurant, Accra on the same day of service, being November 9, 2018. From the record no Statement of Defence was filed for the Defendants hence the instant application.

 

[5] The Plaintiff/Applicant’s grounds for the application is that the time allowed by law for the filing of a Defence to the action has long elapsed and that if the Defendants have any defence to the suit they would have filed same by now. In the Circumstance the Applicant prayed that final judgment be entered against the Defendants for the reliefs endorsed on the writ of summons.

 

[6] The Court notes that the Applicant filed a Supplementary Affidavit on March 13, 2019 to explain an anomaly in the “Exhibit SM1”, a search result attached to the earlier affidavit. The search result indicated that an affidavit in opposition had been filed in response to the instant application. A later search – “Exhibit SM2” revealed that the affidavit was filed by the Interested Party to the Motion for preservation and not the Defendants herein.

 

The Court’s Opinion & Analysis

[7] In the case of ASAMOAH v. MARFO [2011] 2 SCGLR 832 Anin Yeboah JSC opined that: “Summary Judgment and Default judgments are conceptually different. A summary judgment is a judgment on the merits even though it is obtained by a formal motion without a plenary trial. It is a judgment granted on the simple grounds that the Respondent to the application has no defence to the action or part thereof or any reasonable defence to be allowed to contest the case on the merits to waste time and expense.

A default judgment, on the contrary, though obtained by motion, is not a judgment on the merits but a judgment based solely on the inability of a Respondent to the application to file appearance or defence within the statutory periods set down by the Rules, Under the High Court Rules, (C.I. 47), the difference between the two are well spelt out and covered by different orders under C.I. 47. Whereas summary judgment is provided for under Order 14 of C.I. 47, default judgment, after entry of appearance, is provided for under Order 13 of the same C.I. 47”

 

[8] At page 840 of the report, His Lordship further postulated that:

“The principle of law governing judgments in default of appearance or defence in civil proceedings is that, the judgment entered must be the actual amount claimed…

 We think that just a judge has no power to enter a judgment for an amount more than what was claimed, he equally has no such power to enter judgment for a lower figure not asked for in the proceedings”.

 

[9] With the above statement as a guide, I hereby deal with the application. From the record the Defendants are aware of this application because there is proof of service on the docket that their Counsel was served with same. The Court notes that on January 9, 2019 Mr. Opeku was in Court and informed the Court that he has information that the Plaintiff has filed the instant application hence his appearance. The Court confirmed same to him but adjourned because he told the Court that he had not been served. He thereafter failed to attend Court despite the service of numerous hearing notices.

 

[10] I note that the reason why the Court opted to serve the Defendants through Counsel with hearing notices even though they failed to attend Court after being served was that, on the authorities, where a Court has taken a decision without due regard to a party who was absent at trial because he was unaware of the hearing date, that decision is a nullity for lack of jurisdiction on the part of the Court. See: BARCLAYS BANK v. GHANA CABLE CO [1998-99] SCGLR 1 and the earlier case of VASQUEZ v. QUARSHIE [1968] GLR 62. In this case, clearly the Defendants have denied themselves the opportunity of coming to Court to defend the action.

 

[11] Based on the law and the facts, I hereby GRANT the Plaintiff’s application for judgment in default of defence by the Defendants. In particular, Reliefs (a) and (b) are granted. In respect of relief (c) the Court grants the Plaintiffs an amount of GH¢10,000. Plaintiff’s Counsel is to justify the basis for Relief (d) as I am unable to grant that relief at this time.

 

[12] Further, taking into consideration the factors under Order 74 of C.I. 47 and the conduct of the Defendants and the numerous hearing notices issued and relying on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I assess the cost of this action at GH¢15,000.00 in favour of the Plaintiff. I have taken into consideration the filing fees paid which was GH¢2,640. Accordingly ordered.

I now turn to the second application.

Application for the Preservation of Funds and Restraint Order under the Inherent Jurisdiction of the Court

 

Introduction:

[1] Order 25 rule 2 of CI 47 stipulates that:

(1) “On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter or in respect of which any question may arise in the action, or may order the inspection of any such property in the possession of a party.

(2) To enable an order under subrule (1) to be carried out the Court may by the order authorize any person to enter upon any land or building in the possession of any party to the cause or matter.

(3) Where the right of a party to a specific fund is disputed, the Court may, on the application of a party to the cause or matter, order the fund to be paid into curt or otherwise secured

(4)An order under this rule may be made on such terms as the Court considers just

(5) Unless the Court otherwise directs, a Defendant may not apply for such an order before the defendant files appearance.

 

In deciding whether or not to grant an order of injunctive Order under 25 it has been held that the court would consider the justness and convenience of the order[1].

 

[2] Informed by the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant whom I refer to simply as the Applicant has filed in this court on 19/10/2018, an application praying for:

“… an order to preserve all funds belonging to 2nd Defendant and in the possession of the Ministry of Roads and Highways; and to restrain defendants from withdrawing the funds and dissipating same until the final determination of the suit upon the grounds set out in the accompanying affidavit.”

 

[3] As indicated above, the Defendants entered appearance but has since failed to file any process including any affidavit in opposition to contest the instant application. SDC Finance Limited however per their legal Counsel Rene Ebo Adu Jnr. have filed the necessary processes and are contesting the application as an Interested Party/Respondent.

 

Arguments for and against the Application:

[4] The instant application was filed together with the Writ of Summons sealed at the registry of this Court by the Plaintiff/Applicant seeking the reliefs referred to supra.

 

[5] The application is accompanied by the affidavit of Mrs. Gloria Ocran the Managing Director of the Plaintiff Company. The grounds for the application are well articulated by the deponent in the affidavit sworn on October 19, 2018 and the Supplementary affidavit of Samuel Elike Klu, a Law Clerk of Messrs Cardinal Law Group, the Applicant Company’s Solicitors.

 

[6] In speaking to the application learned Counsel for the Applicant rehashed the facts and submitted that the application was filed pursuant to the inherent jurisdiction of the Court. According to Counsel the funds they are praying the Court to preserve are for the 2nd Defendant and same is in possession of the Ministry of Roads and Highways. It is the case of the Applicant that the Defendants represented to the Plaintiff that they have a contract with the Ministry of Roads and Highways and needed funds to carry out the contract. Counsel submitted that pursuant to that representation the Plaintiff granted to the Defendants a facility in the amount of GH¢1,099.987.00. Counsel referred to Exhibit A”, being the offer letter dated December 31, 2017 from the Applicant and addressed to the 1st Defendant, Nana Kumi Korsah.

 

[7] Learned Counsel for the Applicant next submitted that the Defendants further said they would pay the debt from their contract with the Ministry for Roads and Highways. According to Counsel, even though the amount is paid to the Ministry of Roads and Highways by the Ministry of Finance, the Defendants have failed to ensure that the Plaintiff Company is paid. Learned Counsel submitted that this application is brought for the preservation of the funds to ensure that during the pendency of the matter, the funds are preserved and not paid to the Defendants so as not to defeat the purpose for which the Plaintiff is in Court.

 

[8] Responding to the affidavit of Interest filed by SDC Finance Limited, Counsel submitted that the Plaintiff invoked the Court’s jurisdiction by suing the two Defendants named on the writ of summons and the Plaintiff has not received any affidavit from the Defendant. However, according to Counsel the Plaintiff has received an affidavit of interest and the contention of the Interested Party is that it entered into an agreement with Konasah Enterprise Limited and it is its belief that the funds the Plaintiff is seeking to preserve is for the said company and not the Defendants as indicated by the Plaintiff. Counsel submitted that the 2nd Defendant in the suit, Konasah Ghana Limited has a separate legal personality from Konasah Enterprise Limited. To that extent, Counsel submitted that the Interested Party has no capacity to come into the matter because it dealt with a separate legal entity. According to Mr. Aduse Poku a search conducted by the Interested party itself shows that the two entities are separate. To that extent Counsel submitted that, “the interested party is a busy body in this matter.” Counsel therefore prayed the Court to preserve the funds until the final determination of the suit.

 

Arguments against the Application:

[9] Counsel for the Interested Party submitted to the Court that they are opposed to the application. Counsel submitted that their opposition is specifically in connection with the Interim Payment Certificate (IPC No. 5C) in the name of Konasah Enterprise Limited in the amount of GH¢2,300.508.30. Counsel further submitted that another IPC in the name of one Opakor Enterprise in the amount GH¢696.688.85 also with the Ministry of Roads and Highways should also be “noted and preserved by the Court in the interest of the Interested Party as against the Plaintiff’s interest”.

 

[10] Mr. Ebo Adu Jnr. submitted that the Plaintiff says it granted a loan facility to the Defendants to perform contract for the Ministry of Roads and have also mentioned at paragraph 7 of the affidavit in support that the 2nd Defendant has written to the Ministry of Roads and Highways in respect of an amount of GH¢2.3 Million, the exact amount the Applicant wants to be preserved is not stated. According to Counsel the deposition and the submission of the Plaintiff is not enough because in an application such as the instant one, it is imperative that the exact funds to be preserved be stated and identified. According to Counsel no evidence is led by the Applicant to show that the 2nd Defendant had a contract with the Ministry of Roads and Highways and expected an amount of GH¢2.5 Million.

 

[11] Counsel further submitted that by ExhibitA” the funds were given to the 1st Defendant only and there is nowhere in the offer letter where a contract is mentioned. According to the Mr. Ebo Adu Jnr. “the only link by the Plaintiff is that the proceeds is from a contract awarded to a different Company of which the 1st Defendant is the Managing Director and a Director”. Counsel referred to Exhibits SDC 16 and 17 to say that there are two entities but owned by the same individual. Counsel submitted that the funds the Plaintiff is asking the Court to preserve is for Konasah Enterprise Limited.

 

[12] Further, contrary to the above, Counsel for the Interested Party submitted that the interested party granted a loan facility – Discounting of Interim Payment Certificate to the Konasah Enterprise. Counsel referred to Exhibit SDC 3 and in particular the section of the letter headed – “Security” to submit that the loan granted was for a specific project being the “Resealing/Partial Reconstruction of Mankessim – Abura Dunkwa Road (Contract No. GHA/CR/MTTR.508/12) which value is stated as GH¢2,185,482.89).

 

[13] Counsel again referred to Exhibit SDC 4 and the details therein to submit that the IPC dated 23 December 2016 is to be paid to Messrs Konasah Enterprise. Counsel further submitted that it is clear that when the Plaintiff demanded from the 1st Defendant its debt, Mr. Nana Kumi Korsah tried to change the account details which resulted in the writing of ExhibitB” dated 18/10/2018, which the Applicant relies on for this application. According Counsel the Ministry refused to comply and thus replied to Exhibit B by authoring Exhibit 6 to say it could not comply. Based on the above Counsel submitted that the Plaintiff has no capacity to ask that the funds for the IPC 5 be preserved by the Court.

 

[14] Finally, Counsel submitted that since preservation must be proven the Plaintiff has the burden to prove that there are funds to be preserved. In this case Counsel submitted that the Plaintiff has failed to do so because according to him there are no funds to be preserved as same has already been paid out to the Interested Party by the Ministry of Roads and Highways. Based on all of the above submission, Counsel implored the Court to dismiss the application.

 

The Court’s Opinion and Analysis:

[15] In GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LTD & ORS [1999-2000] 2 GLR 178, the Court of Appeal considered an interim preservation appeal after the Sekondi High Court had made an order preserving certain equipment which became the subject matter of a consolidated suit. Benin JA (as he then was) analysed the old Order 50, Rule 5 of the High Court Rules under LN I40 A, the wording of which is same as Order 25 Rule 2 of C.I. 47 and reiterated the rule which provided that:

“It shall be lawful for the Court or a Judge, upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into the land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence”.

 

The Court reasoned that in granting such an application the

(a) “order must be made against the person in possession or custody of the property in dispute.

See also WILDER v. WILDER (1912). 56 S.J. 571”.

(b) The property must be the subject-matter of the suit.

 

[16] In applying the law as provided for under Order 25 Rule 2 which has received judicial blessing of the Court of Appeal and as I understand the instant application, the Plaintiff is pursuing this action for purposes of having any money in the custody of the Ministry of Roads and Highways which belongs to the Defendants to be preserved. From the evidence it is clear that the Plaintiff is owed money by the Defendants and to that extent, in my considered view, this relief by the Plaintiff is not only apposite but also capable of providing effective balm to it so that should the Court grant the Plaintiff’s claim it could fall on it. In other words, the apprehension the Plaintiff entertains which probably motivated the instant application is answerable based on the law by the Court.

 

[17] To my mind, the main issue for my consideration is whether or not the funds/property is the subject matter of the suit? The Plaintiff offer letter which is ExhibitA” was to “Nana Kumi Korsah Trading as Opakoh Enterprise”. Exhibit SDC1 signed by the Acting Chief Executive of the Ghana High Way Authority it is reiterated that the money is for the Payment Certificates and Payment Vouchers in joint names of “Konasah Enterprise Limited/CAL Bank Limited’. Exhibit SDC 6 further confirms that the proceeds are from the contract for resealing/partial Reconstruction of Mankessim – Abura Dunkwa Road. That certainly in my respectful opinion is in sync with the Interested Party’s

Facility Letter of 24th January, 2017. In my view the Plaintiff’s case for the preservation of the funds in the amount of GH¢2,300,508.30 is not made out based on the evidence before me. In my view, though the application is properly before the Court based on the rules, the Interested Party has made out a more reasonable and plausible case to be entitled to the funds than the Plaintiff. Though it is not disputed that the Defendants are owing the Plaintiff an amount of GH¢1, 480.00 as endorsed on the writ of summons based on the evidence submitted, the Plaintiff has failed to make out a plausible case that the loan facility given to Nana Kumi Korsah of Opakoh Enterprise was what was used to undertake any road contract for which the said amount paid to the Ministry of Roads and Highways is for.

 

[18] In any case all of the above analysis notwithstanding, from the Supplementary Affidavit filed on November 16, 2018 and deposed to by Rapheal Gyekye, and which was not denied by the Applicant it is stated unequivocally at paragraphs 7 to 15 that the amount has been paid out by the Ministry of Roads and Highways to CAL Bank which has also paid same out to the Interested Party. To that extent the amount of GH¢2,185,482.88 is no longer in possession of the Ministry of Roads and Highways to be preserved by the Court. In the case of CHAPLIN v. BARNETT (1912) 28 TLR 256, the Court of Appeal decided that “the order will be granted so long as there is something which ought to be done to ensure the security of the property”. In this case, the evidence is that the property is not available to be preserved and secured, therefore in my respectful opinion this Court would be making a brutum fulmen order in respect of the amount the Applicant is praying that it be preserved. Consequently, the application is DISMISSED.

 

[19] While coming to the conclusion, I must be quick to state that the second leg of the Interested Party’s prayer that another IPC in the name of Opakor Enterprise in the amount GH¢696.688.85 also with the Ministry of Roads and Highways should be noted and preserved by the Court in the interest of the Interested Party as against the Plaintiff’s is without basis as no case has been made for the Court to make any such order and therefore it is declined. If anything at all in my respectful view any such funds should be preserved for the Plaintiff and not the Interested Party. I am however unable to make the said order based on my understanding and appreciation of the law because the said funds is not the subject matter of the suit before me.

 

[20] Based on the facts of this case and the circumstances, even though the Interested Party has been successful in this application, I make no order as to Cost in their favour. I do not think that the Plaintiff ought to be mulcted in cost for bringing the instant application. The application in my view was not frivolous. It was within the right of the Plaintiff to bring the application. Accordingly ordered.

 

 

 

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