IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
BARCLAYS BANK GHANA LIMITED - (Plaintiff)
AKUAFO ADAMFO MARKETING CO. LTD AND OTHERS - (Defendant)
DATE: 16 TH APRIL, 2018
SUIT NO: CM/0049/16
JUDGES: GEORGE K. KOOMSON JUSTICE OF THE COMMERCIAL COURT
MAXWELL LOGAN (WITH SIKA AGGREY) FOR THE PLAINTIFF/APPLICANT
KOJO ASARE BOATENG FOR SAMUEL CODJOE FOR THE DEFENDANTS/RESPONDENTS
A brief summary of the facts in this case is that the 1st Defendant obtained various forms of facilities from the Plaintiff in 2014. These facilities were guaranteed by 2nd to 5th Defendants. The purpose of these facilities was to enable 1st Defendant purchase cocoa beans in the 2014/2015 cocoa crop season. At the expiration of the facility term, the 1st Defendant was unable to repay the amount granted to it with interest. The Plaintiff therefore issued the present action to recover all outstanding balance from the Defendants. The case was referred to me for pre-trial settlement. I must say that settlement broke down and the Court settled the issues on the 19th May 2016. Contrary to the practice at the Commercial Court, applications were put before me, though I was the pre-trial Judge. None of the parties objected to this.
Consequently, the Court heard these applications. One of such application is the instant one which the Plaintiff is seeking an order to enter judgment on behalf of the Plaintiff based on the amount certified by the auditor appointed by the Court as being owed to the Plaintiff by the Defendant.
The Defendanst contend that by an oral agreement the Plaintiff agreed not to pursue their right to recover any debt owed by the Defendants until the 1st Defendant has gone through a restructuring. This assertion has been denied by the Plaintiff. Defendants further stated that pre-trial has not been completed therefore the Plaintiff’s application is premature. I do not want to belabour this point, as I have already stated that pre-trial settlement broke down and issues were settled as far back as May 2016. The question which I have to resolve in this application is as to whether an order be made entering judgment on the sum certified in the accounts in favour of the Plaintiff.
I have read the application and all the affidavits filed by the parties.
I have also considered the oral submissions made by both Counsel. Regard has been given to Order 29 of the High Court (Civil Procedure) Rules, 2004, C.I. 47. It is however useful for me to place emphasis on Order 29 Rule 1 thereof, which states:
“(1) Where a writ indorsed with a claim includes a claim for an account or a claim which necessarily involves taking an account, the Plaintiff may, at any time after the Defendant has filed appearance or after the time limited for filing appearance apply for an order for account under this rule.
(2) An application under this rule shall be supported by affidavit or other evidence if the Court so directs.
(3) On the hearing of the application the Court may, unless satisfied by the Defendant by affidavit or otherwise that there is some preliminary question to be tried order that an account be taken, and may also order that any amount certified on taking the account to be due to either party be paid to that party within a time specified in the order”.
The Defendants do not deny the fact that 1st Defendant took the facility from the Plaintiff. They further do not deny owing the Plaintiff some outstanding balance. It is the actual debt owing that was in issue which prompted the application for accounts was filed. Now, accounts have been gone into and it has been established and certified that the Defendants owe the Plaintiff in the sum of GH¢61,454,538.03. Having certified this amount as the debt owed by the Defendants, the question is, should the Court order the Defendants to pay the Plaintiff within a specified time?
It is noted that an order for accounts can be made at any time of the proceedings, even after judgment: see the case of BARBER VS. MACKRELL (1879) 12 Ch. D. 534. It is my view that, having ascertained how much the Defendants owe the Plaintiff, as certified in the auditor’s report, the only core issue for the determination of the trial court will be as to whether or not this debt should await the restructuring of the 1st Defendant company or not. I do not see any inhibition on the grant of the Plaintiff’s application except subject to the time of its enforcement. It is therefore my considered opinion that the Plaintiff should have judgment on the sum certified in the accounts as the issue as to how much the Defendants owe is well settled in the accounts.
Accordingly, it is ordered that the Plaintiff should recover the sum of GH¢61,454,538.03 from the Defendants after the determination of the issue as to whether there was an oral agreement that the Plaintiff will refrain from insisting on the facility they gave the 1st Defendant until the restructuring projects of the 1st Defendant was completed. The Plaintiff should be entitled to interest at the contractual rate of 30.22% from 11th December, 2015 to the date of this decision that is 16th April, 2018. I shall reserve the issue of legal fees till the end of the trial.
I will award to the Plaintiff costs for this application assessed at GH¢5,000.00. Cost in the substantive matter is hereby reserved till the end of the trial. The issue of whether or not the Plaintiff is entitled to enforce the recovery of the sum due as a result of the breach of the restructuring raised in the application is to be determined at the trial.