IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
GROFINAFRICA FUND (GH) LTD - (Plaintiff)
COLL BIY ENTERPRISES LTD AND 2 OTHERS - (Defendants)
DATE: 9 TH MAY, 2018
SUIT NO: MISC/0132/17
JUDGES: GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
SEAN POKU FOR APPLICANT
KWAME BOAFO FOR RESPONDENTS
In this application, the applicant prays this court for an order for warrant to realize and or take possession of the property situate at Gbawe North, Accra in the Greater Accra Region known as plot no. 67 (Sector F).
The respondents resist the application. The case of the applicant is that the 1st respondent applied for a loan facility in the sum of GH¢215,000.00 on the 14th of May, 2012 at an agreed interest rate of 24.25% per annum. The purpose of the facility was for the 1st respondent to augment its capital. The 2nd respondent is the managing director or the Chief Executive of the 1st respondent. It is the case of the applicant that the 2nd respondent personally guaranteed the loan for and on behalf of the 1st respondent. Furthermore, the applicant contends that the 2nd and 3rd respondents who are both directors and shareholders of the 1st respondent company, provided 3rd party legal mortgage over the property which has been described earlier on in this ruling. The applicant further contended that in compliance with the Borrowers and Lenders Act, 2008 (Act 773) the property used by the 2nd and 3rd respondents to secure the facility was registered with the collateral registry of Bank of Ghana. It is further the case of the applicant that it was agreed between the 1st respondent and the applicant that 1st respondent was to repay the facility so granted by monthly installment of GH¢6,292.00 until the debt was fully liquidated.
The applicant further contended that in the event of a default, the applicant was to demand repayment of the outstanding indebtedness. Applicant further stated that the respondents defaulted repayment of the facility as at 31st May, 2016. As at 31st May, 2016, the total indebtedness of the respondents stood at GH¢381,982.00 with interest still running on the agreed rate until the date of full and final payment.
Despite several demands made by the applicant, the respondent failed, refused and or neglected to make payment of the outstanding balance. The respondent on the other hand admitted requesting for the said facility from the applicant. Their case however is that, the applicant paid a first tranche of the facility to the account which they provided. It is further the contention of the respondent that the applicant did not pay the 2nd instalment to the proper account as a result of which their supplier did not receive the money. It is therefore the case of the respondent that they are not liable to the applicant on the sum claimed as they have fully settled the amount paid to them. From the pleadings before me, the issues that I have to adjudicate on are;
a) Whether or not the applicant paid the sum of GH¢215,000.00 into the account provided by the respondents.
b) Whether or not the applicant paid the 2nd tranche of money into a wrong account and if so;
c) Whether or not the said payment of the 2nd tranche into the wrong account was as a result of the negligence of the applicant or the respondent.
d) Whether or not the applicant is entitled to its relief.
I shall resolve all the issues together in accordance with the law and the affidavit evidence, as they all have a single strand, that is, the authorization of the respondents for the payment of monies into certain account, running through them. Before dealing with the issues, I will like to comment on an erroneous opinion or submission that counsel for respondent made in his written submission. This is what counsel stated at page 3 of his written submissions:
“In respect of 2nd tranche it is obvious that its payments is in serious issue which is now the issue at stake in this case. The many and various affidavits in support and opposition to the motion only show that there is issue as to whether there was disbursement to the 1st Respondent or not. It is my humble submission that this issue cannot be determined on affidavits. It must be based on evidence taken in a trial. This makes the procedure of Originating Notice of Motion inappropriate. The triable issue(s) raised could only be determined by the issuance of a writ of summons”.
I find the said submission very amusing. Order 38 of C.I.47 provides in rule 2 as follows: “(1) The court may, at or before the trial of an action, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
(2) An order under sub rule (1) may be on such terms as to the filing and giving of copies of the affidavit and as to the production of the deponent for cross examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponent shall not be subject to cross-examination and need not attend the trial for the purpose.
(3) On any application in any cause or matter, evidence may be given by affidavit unless in the case of any such application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making the affidavit, and where, after an order has been made, the person in question does not attend, that person’s affidavit shall not be used as evidence without leave of the Court”.
Clearly the sub rule 3 of rule 2 of Order 38 states that a party has the right to cross examine any other person who has filed an affidavit. If respondent counsel was desirous of cross examining any person who has filed an affidavit in this matter, he ought to have applied to this court. The need to determine cases by affidavit evidence has been in our judicial practice since the establishment of the Court in Ghana. For example, originating processes are mostly heard by affidavit evidence. Order 55, 56 and other similar applications, like application brought under the Borrowers and Lender Act and applications brought under Order 50 (contempt applications) are all processes that are determined on affidavit evidence. It is therefore incorrect for counsel to assume that because the respondents are denying the payment of the 2nd tranche to them by the applicant, the issue raised on that denial makes the procedure of originating notice of motion inappropriate. A court of law in our jurisdiction is mandated, depending upon the facts and circumstance and the law governing the procedure for relief, to hear and determine cases by affidavit evidence.
Respondents’ counsel further submitted that the dispute is deepened by the allegation of fraud implicit in the respondents’ case. According to counsel, it is inappropriate for an allegation of fraud to be determined summarily. Counsel submitted that fraud should be determined by the issuance of a writ of summons. In the first place, the filing of the 22nd March, 2018 affidavit by Mr Paul Agyemang Duah was done without the leave of the court. The record of the court shows that on the 8th February, 2018, the court made the following orders:
‘‘Leave is hereby given to the Applicant to respond to the supplementary Affidavit filed by the respondents on the 7th February, 2018 within 7 days. Upon the expiration of the 7 days, both counsel should file their written submissions within 21 days...’’
The Applicant’s counsel filed his written submissions on the 5th March, 2018. Then on the 22nd March, 2018, respondents filed an affidavit in answer to the supplementary affidavit filed on the 16th February, 2018 by applicant. It is my view that the respondents ought to have obtained the leave of the court before filing the 22nd March, 2018 affidavit or show exceptional circumstances in order for the court to allow the supplementary affidavit to be accepted. In the South African case of JAMES BROWN HAMER (Pty) LIMITED v SIMMONS 963(4) SA 656 (A) 660E – F, it was stated that:
“where, as in the present case, an affidavit is tendered in motion, proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the court: he must both advance his explanation of why the affidavit is out of time and satisfy the court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received.”
In STANDARD BANK of SA LIMITED v SEWPERSADH & ANOR 2005 (4) SA 148 (c) para  it was held that:
“Clearly, a litigant who wish to file a further affidavit must make a formal application for leave to do so. It cannot simply slip the affidavit into the court file (as it appears to have been the case in the instant matter). I am of a firm view that this affidavit falls to be regarded pro non scripto.”
It is my view that, the filing of the further affidavit after the Respondent has filed their affidavit in opposition, is a matter of discretion of the court. Therefore in the absence leave being granted by the court for the filing of such affidavit, parties are not entitled to simply, by their own arrangement file as many affidavit as they wish.
As I have stated earlier, the court granted leave to the Applicant to file a supplementary affidavit in response to the affidavit in opposition filed by the Respondents on the 8th of February, 2018 and further asked both counsel to file their written submissions after the expiration of 7 days within which the Applicant was to file the supplementary affidavit. Therefore, if the Respondents wanted to respond to the supplementary affidavit filed by the Applicant which said affidavit was filed with the leave of the court, they ought to have asked for leave to do so. Even there, the leave ought to have been sought before counsel for the Applicant filed his written submission. It is therefore my considered opinion, that the filing of the affidavit by the Respondents and their inability to offer explanation why the affidavit was filed out of time, coupled with their inability to show any special circumstances requiring the reception of the affidavit, leads me to the only conclusion that the affidavit ought to be ignored. In any case, the gravamen of the present application is that the respondents are in default of the repayment of the facility granted to them by applicant. Issues of fraud raised as a defence in an originating notice of motion, like the instant one, does not make the application inappropriate.
The court has a duty and can determine issues of fraud raised in originating processes by affidavit evidence. Where any of the parties request to cross- examine a person who has filed an affidavit, the Order 38 rule 2 (3) of C.I. 47 is clear about it. The deponent can be ordered to attend court for cross-examination. Again, if respondents were of the view that further evidence needed to be led, they ought to have asked for leave of the court to lead the said evidence. The rule 3 of Order 38 of C.I. 47 therefore provides:
“3(1). Without prejudice to rule 2, the Court may at or before the trial of an action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order.
(2) The power conferred by sub-rule (1) extends in particular to ordering that evidence of any particular fact may be given at the trial;
. by statement on oath of information or belief; or
by the production of documents or entries in books; or
. by copies of documents or entries in books; or
in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of any publication of general circulation which contains a statement of that fact.”
It is my considered opinion that the determination of the present application cannot be inappropriate by reason of an allegation of fraud raised in an affidavit which was filed without leave of the court. Even where the said allegation of fraud was filed with leave of the court, the jurisdiction of the court to determine the issues raised in this application cannot be questioned. The next issue which the court is called upon to adjudicate is as to whether or not the Respondents are in default of payment of the facility granted so as to require the grant of a warrant for possession under Sections 33 and 34 of the Borrowers and Lenders Act 2008, Act 773. It is the case of the Respondents that the Applicant transferred the 2nd tranche of the facility to a wrong account. The Respondents further contend that by reason of this they are not liable to pay the money wrongly transferred into the wrong account. From the evidence before me, one thing is clear, that is, before any monies were to be disbursed by the Applicant, a disbursement request form was to be signed by the Respondents as a way of confirming the details of the accounts which the monies were to be transferred into.
The question therefore is, did the Applicant transfer the 2nd tranche of the money to the wrong account? And if so, was the said account confirmed by the Respondents before the transfer was effected. From exhibit RA7 the accounts into which monies were to be transferred into was Fujian Putian with account number 13400114040000213 and Guangdong Diva Industry Limited with account number 11013158068001. These accounts details were confirmed by the Respondents when they signed the disbursement request form. The transfers were effected on 12th day of June, 2012. It was not until the 22nd June, 2012 that the Respondents indicated to the Applicant that the accounts into which the monies were to be transferred into and which they provided, was erroneous. This mistake, to me, was occasioned not by the Applicant but by the Respondents themselves. At the time the Respondents were signing the disbursement request form, they ought to have realized that the account details on the request form was wrong and should have corrected same before confirmation. In my view, it is rather the Respondents who misled the Applicant into paying the said money into the wrong account. Having failed to correct the said error on time and having waited for 10 clear days after the transfer of the money, I do not think the Respondents should be allowed to say that the 2nd tranche of money was not received by their suppliers and therefore they are not liable to reimburse the applicant.
Where monies are to be transferred, at the instance of a customer of a bank, into an account provided by the customer of the bank and the said customer gives a wrong account details and the monies are transferred into that account, the customer is liable to the bank for the monies paid into the wrong account given by him. It is noted that a customer of a bank owes the bank a duty not to mislead the bank. The principle of law is that a principal who has mislead his agent into doing something on his behalf which the agent has honestly done would not be entitled to claim against the agent in respect of the act done: see the case of CALLAND v LOYD (1840)6 M&W 26; PLUNKETT v BARCLAYS BANK LTD (1936) 2 K.B. 107. Where an agency is contractual, as in the instant case, the agreement to reimburse and indemnify in return for what has been requested, if not express, can be regarded as an implied term of the contract that operates unless clearly excluded: see TOPLIS v GRANE (1839) 5 BING.N.C 636.
It is therefore my considered opinion that the Respondents, in the instant case, should be held liable for the monies that were paid by the Applicants in the 2nd tranche at their instance, as it was the Respondents who provided that account details to the Applicant for the transfer to be effected. Furthermore, the Respondents had confirmed on the disbursement request form that they signed, that the account details were correct. In all this, the applicant acted as the agent of the 1st respondent. So, if the Applicant had complied with the instructions of their principal, the Respondents, by effecting the transfer to the said account, then the Respondents are liable to repay the said amount with its interest and other conditions, to the Applicant. The next issue for my consideration is as to whether or not the Respondents are in default so as to entitle the Applicant to bring the present action under the Borrowers and Lenders Act. It is the case of the Respondents that they have paid their debt. It has been found that the 2nd tranche of the facility remains outstanding because the Respondent dispute same and has not paid. Having found that the Respondents are liable to pay to the Applicant the amount of money transferred into the account provided by the Respondents, the fact still remains that there is an outstanding balance which has not been paid despite demand notices given to the Respondents on 15th of August, 2016.
Again, from the evidence before me, there is no dispute that the Respondents were to pay the sum of GH¢6,292.00 in monthly installments. However, the Respondents paid the sum of GH¢3,146.00 per month. This in itself constitutes a breach of the agreement executed by the parties. Paragraph 6 of the affidavit filed by the respondents on the 15th November, 2017 attest to this fact that the Respondents instead of the GH¢6,292.00 per month were paying GH¢ 3,146.00 per month. This to me, constitutes a default. I am satisfied therefore, that, the Applicant has established that the Respondents are in default of payment. From the records before me, the transaction was registered with the collateral registry. Upon their default, the Applicant through their attorney wrote to demand payment from the Respondents on 15th of August, 2016. Furthermore, when the Respondents failed to settle their indebtedness, the Applicant through their attorney, Hope Capital Limited, wrote to the Respondents notifying them of their intention to possess the property located at Gbawe, Accra. This notice of intention to possess, has been exhibited as Exhibit RA5. The records further shows that the collateral registry of the bank of Ghana has issued a memorandum of no objection pursuant to Section 33(b) of the Borrowers and Lenders Act 2008 Act 773 and the Collateral Registry Guidelines and Bank of Ghana notices. This is also dated 19th June,
I am satisfied that the Applicant has complied with the provisions in Section 32 of Act 773 and the Collateral Registry Guidelines and Bank of Ghana notices. It is therefore my considered opinion that, the Application should be granted. Same is accordingly granted. It is hereby ordered that the Applicant take possession of the property No 67 (Sector F), Gbawe, North Accra) bounded on the North by plot no. 68 measuring 100 feet more or less, on the East by plot no. 65 measuring 105 feet more or less, on the South by a propose road measuring 100 feet more or less, on the West by plot no. 69 measuring 105 feet more or less and containing an approximate area of 0.17 acre more or less, with the assistance of Ghana Police, Gbawe, Accra.
The Applicant should have its cost in the action assessed at GH¢2,000.00