IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMECIAL DIVISION),
ACCRA- A.D 2019
XPORT-IMPORTBANK OF US - (Plaintiff)
ESM COMPNAY LTD. AND EBENEZER YAW SARPONG - (Defendant)
DATE: 29 TH MARCH, 2018
SUIT NO: CR/BFS/0729/16
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
It is not in dispute that 1st Defendant contracted a loan of $2,314,497 from the RB International Finance (USA) (RBIF) to finance importation of equipment for its business. From the pleadings it seems Plaintiff’s role was to provide a guarantee and a promissory note for the approval and disbursement of the loan which were contained in a Master Guarantee Agreement which Defendants claim they are not party to.
Plaintiff alleging a default in the repayment of the loans and having been called upon by RBIF to repay the loans to the extent of the promissory note and the guarantee provided have sued the Defendants. Forecasting the doomed fate of an application to join RBIF to the suit as a Co-Defendant, the Defendants withdrew the motion for joinder only to file this application for leave to amend its statement of defence and add a counter claim against RBIF.
The gravamen of the application to include a counter claim can be found in paragraphs 5 and 6 of the affidavit deposed to by Samuel Quansah Ansah in support of the application as follows:
5. From Ex ‘A’ it is clear that RB International Finance had supplied the Defendants/Applicants with second hand machines contrary to the representation that they financed brand new machines and the machines supplied were also without major components to make them function at all or be used for the purposes for which they were intended.
6. The Defendants/Applicants further say in Ex ‘A’ that RB International had a duty to advise the Defendants/Applicants to seek independent legal advice in respect of all the agreements signed but failed to discharge that duty”
Counsel for Defendants/Applicants has cited a number of factors on joinder and consolidation of suits in support of his application to be allowed to amend his pleadings and counter claim and draw RBIF to the suit. In terms of Order 16 of the High Court (Civil Procedure) Rules, C.I. 47 and even Order 4 Rule 5 the arguments canvassed appears to be perfect ground for the Applicants to be allowed to amend their statement of defence and also add a counter claim. Nonetheless, this application is peculiar in nature. Defendants intends to file a claim against an entity that is not a party to this suit at all. And their sole ground of intending to add RBIF is what has been provided in paragraphs 5 and 6 supra.
The loan application for which the Plaintiff herein was not a party to but its involvement was only to provide a promissory note does not make Plaintiff a party of the 1st Defendant’s loan contract with RBIF. Authorities are clear that a promissory note or a bank guarantee when issued is a separate and independent agreement on its own. See UP STATE SUGAR CORP v SUMAC INTERNATIONAL LTD. (1997) SCC 568. And so the fact that the party that provided the Bank guarantee sues the borrower of the loan would not entitle the borrower to claim that it has a case against the lender and for him to seek to join the lender on the simplistic rules applicable to amendments, joinder and consolidation of suits.
I apprehend that the Defendants are seeking the opportunity to obfuscate the issues before the court and bring in matters that are not convenient to be tried with the matters before the court. The laws governing Bank guarantees and promissory notes does not permit the course for which these Defendants/Applicants are seeking to take. In fact they seek to obtain in substance what they failed to gain with their application for joinder.
This application being bereft of any merit I dismiss same and award cost of GH¢1,000.00 against the Defendants/Applicants.