IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
GUARANTY TRUST BANK (GH) LIMITED - (Plaintiff)
SELECT REALTY (GH) LTD, C. O. YEBOAH & ASSOCIATES AND CHARLES O. YEBOAH -(Defendant)
DATE: 22ND JANUARY, 2016
SUIT NO: BFS/200/2013
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
LAWYERS: MR. DERRICK D. KUSHITOR FOR THE PLAINTIFF
By a writ of summons issued on the 28th day of August, 2013 the Plaintiff claims against the defendants:
· Recovery of the sum of GH¢13,334.75 being the total indebtedness of the Defendants to the Plaintiff as at July 31, 2013.
· Interest on the said sum at 35% per annum till date of final payment.
· Costs including solicitors fees on a full indemnity basis.
· Further relief as the Court may deem fit.
After the service of the writ with its accompanying statement of claim on the defendants, an Appearance was filed and later a Statement of Defence. When the parties could not settle the matter at pre-trial, the case was set down for hearing. Thereafter, several hearing notices were served on themdefendants through their solicitor the last one being served on the 16th day of December, 2015 by which the Defendants were notified to appear in court in order for the suit to be heard. Despite the service of hearing notices the defendants failed to appear on the 18th day of December, 2015 and not even their lawyer had the courtesy to appear in court on the hearing date.
The court has a duty to avoid delay in the hearing of cases as stated in Order 37 rule 2 of the High Court Rules of Civil Procedure that
“It is the duty of the parties, their lawyers and the Court to avoid all unnecessary adjournments and other delays, and to ensure that causes or matters are disposed of as speedily as the justice of the case permits”
Therefore where a party was served with a hearing notice informing him of the date fixed for hearing and inviting him to put in appearance for the prosecution or the defence of a case, and the party fails to avail himself of the opportunity given him, the court has the power to proceed with the hearing of the case in the absence of the party. See Republic v. Judicial Committee of the Ahanta Traditional Council; Ex parte Bosomakora II [1982-83] GLR 231
Order 36 rule 2(a) is also clear on this issue. It states that
“(2) Where an action is called for trial and a party fails to attend, the trial Judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim”
The court therefore invited the Plaintiff to prove its claim wherefore the Plaintiff’s representative gave evidence after which the Plaintiff announced the closure of its case.
From the evidence on record the court finds that the 1st and the 2nd defendants are all customers of the Plaintiff bank. The court also finds that the 3rd defendant is a partner in the 2nd defendant law firm.
The court finds from the evidence that in August 2008, the 1st defendant company applied for and was granted an overdraft facility of GH¢10,000.00 by the plaintiff. There is evidence to the effect that the overdraft facility was for a period of ten working days at a floating interest of 36% per annum.
There is also evidence to the effect that in September 2008, the 2nd defendant applied to the plaintiff bank which also granted an overdraft facility of GH₵8,000 for a period of ten working days at a floating interest rate of 36% per annum.
The court is satisfied from the evidence on record that out of the overdraft of GH¢10,000 given to the 1st defendant, the 1st defendant effected repayment of this overdraft leaving an unpaid balance of G GH¢520.27 as at July 2008.
The court again finds that the 2nd defendant had made payment of GH¢6,000.00 as at February, 2010.
There is evidence on record that the defendants have not made any further payment of their indebtedness to the Plaintiff since 2010. From exhibit A to exhibit A3, the court finds that various demand notices have been sent by the Plaintiff to the 1st and the 2nd defendants demanding the repayment of their indebtedness to the Plaintiff but all to no avail and even a proposal made by the defendants per exhibit B to settle their indebtedness to the Plaintiff was not honoured by the them.
In their statement of defence, the 3rd defendant had denied contracting any loan or overdraft facility from the Plaintiff. From the writ of summons and the statement of claim particularly paragraph 2, the
Plaintiff concedes that the 1st and the 2nd defendants are limited liability companies.
Again from the statement of claim and the evidence given by the representative of the Plaintiff bank, it is quite clear that the only role played by the 3rd defendant is that he acted on behalf of the 1st and 2nd defendant companies as the Managing Director. There is no allegation of fraud or evidence of fraud made against the 3rd defendant by the Plaintiff.
Section 24 of the Companies Act gives limited liability companies corporate personalities with the right and power to sue and be sued in their corporate names and indeed; limited liability companies being unnatural persons are entitled to act through human beings such as the directors of the company. See the case of Morkor v. Kuma [1998-1999] SCGLR 620.
In the opinion of the court therefore the 3rd defendant is not a proper party in the suit. Order 4 rule 5 (2) (a) of the High Court Civil Procedure Rules 2004 CI 47 provides that
“(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application
(a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party, to cease to be a party.”
The court will therefore strike out the name of the 3rd defendant from the suit as having been improperly made a party to the suit.
It is clear from the writ of summons and its accompanying statement of claim as well as the evidence on record that the 1st and 2nd defendants are limited liability companies independent of each other. It may be true that they may have common shareholders or officers manning them but that does not take away their separate legal identities. That being the case it is wrongful, in my opinion, for the claim to be couched on the writ of summons as if the 1st and 2nd defendants jointly contracted their respective loans from the Plaintiff. Even if there was the need for the defendants to be joined as parties on the same writ, the claims against them should not have been joined by the Plaintiff as if the defendants have been sued jointly and severally.
However, Order 4 rule 5 can be applied to save the suit against the defendants. The said rule provides that Order 4 rule 5(1)
“5. Misjoinder and non-joinder of parties
(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.”
In view of the evidence on record therefore judgement will be entered for the plaintiff against the 1st defendant to recover the sum of GH¢520.27 together with interest at the rate of 36% per annum from
1st August 2008 till the date of final payment.
In respect of the 2nd defendant judgement will be entered for the Plaintiff against the 2nd defendant to recover cash the sum of GH¢2,000 together with interest at the rate of 36% per annum from the 1st day of March 2010 till date of final payment.