UNIVERSAL MERCHANT BANK LTD. vs. AKOSOMBO TEXTILES LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT(COMMERCIAL DIVISION)
    ACCRA - A.D 2016
UNIVERSAL MERCHANT BANK LTD -(Plaintiff)
AKOSOMBO TEXTILES LIMITED - (Defendant)

DATE:  8TH JULY, 2016
SUIT NO:  BFS/281/2014
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS: 
JUDGMENT

Plaintiff claims the following reliefs endorsed on its writ issued against the defendant

i. Recovery of the sum of Ghc2, 092,984.85 (Two Million, Ninety two Thousand, Nine Hundred and eighty-Four Ghana cedis, Eighty-Five Pesewas)

ii. Interest the sum of Ghc2, 092,984.85 at the rate of 5% per annum above the prevailing base rate of the Plaintiff from 31st July, 2014 till date of final judgment.

iii. Recovery of the sum US$1,104,732.94 (One Million, One Hundred and Four Thousand Seven Hundred and Thirty-Two United States Dollars, Ninety-Four Cents) or its cedi equivalent.

iv. Interest on the sum of US$1,104,732.94 at the rate of 12% per annum from 31st July, 2014 till date of final payment

v. Judicial sale of the mortgage/charged properties in satisfaction of the judgment debt

 

In the statement of claim that accompanied the writ, plaintiff claims that it disbursed a number of loan facilities to the defendant and as defendant could not meet up with the repayments schedules the loans were restructured for the defendant. That the restructured loan facilities came to an amount Ghc1, 956,250.00 and an overdraft facility of US$1.000.000.00. The restructured facility had a retirement date of 31st December, 2014.

 

To plaintiff as defendant defaulted it called in the facilities and demanded the repayment of the entire sum of monies. And yet the defendant has failed to repay the monies claimed together with the penal interest as agreed between the parties per the agreement they entered into and defendant will not repay the facilities unless compelled by the court to pay.

 

Defendant in its statement of defence and counterclaimed denied the claim of the plaintiff claiming that plaintiff unduly delayed in the disbursement of the loan thereby defeating the purpose for which the loan was to be provided it as well as exposing it to third party contractual obligations. And as plaintiff frustrated the timelines set it lies ill in the mouth of the plaintiff to complain about the defendant’s inability to service the loans on the agreed terms between the parties. Defendant also denied any entitlement of penal charges to the plaintiff. Defendant accordingly counterclaimed for the following reliefs:

i. A declaration that the Plaintiff failed, refused and/or neglected in discharging its financial obligations to the Defendant herein in terms of the timely disbursement of the loans, the subject matter in dispute.

ii. A further declaration that as a direct result of the Plaintiff’s failure, refusal and/or neglect to honour its obligations aforesaid, the Defendant suffered consequential financial loss.

iii. Damages for consequential loss of profit as a direct result of the Plaintiff’s failure, refusal and/or neglect in discharging its financial obligations to the Defendant herein in terms of the timely disbursement of the financial arrangements.

iv. A consequential order that the loss of profit so found and ascertained by the Court shall be used as a set-off against what is lawfully due the Plaintiff from the Defendant.

v. An order for accounts into the loans advanced to the Defendant by the Plaintiff and the restructured one dated 5th June 2011 to determine the Defendant’s true indebtedness to the Plaintiff.

vi. A declaration that the Plaintiff is not entitled to exact the penal charge of 5% on the loans advanced to the Defendant by the Plaintiff by reason the late disbursement of same and their adverse effect on the Defendant’s production target and profits.

vii. Damages for breach of contract

vii. Costs including solicitor’s fee assessed at 15% of the Plaintiff ‘s claim

 

As the pretrial conference failed to settle the matter between the parties the following were set down for trial by the pre trial Judge:

1. Whether or not defendant is indebted to plaintiff in the sum of Ghc 2,092,984.85 and US$1,104,732.94

2. Whether or not Defendant failed, refused and/or neglected to disburse the loans timeously to the Defendant in breach of its financial obligations to the defendant.

3. Whether the defendant suffered consequential financial loss of profit as a result of the Plaintiff’s failure refusal and/neglect to honour its obligations aforesaid.

4. Whether or not plaintiff’s action is premature.

5. Whether or not Plaintiff is entitled to claim the penal charge of 5% on the loans advanced to defendant

6. Whether or not Plaintiff is entitled to the reliefs sought

7. Whether or not defendant is entitled to its counterclaim

 

As part of the preparations towards the trial the court ordered the parties to file their respective documents and witness statements on the 25th of January, 2016. Despite prove of service of the orders of the court and hearing notice on the defendant it failed to comply with the orders of the court. The court extended the period for defendant to comply with its orders. With the persistent failure of the defendant to file the processes the court invoked its powers under Rule 7A of Order 32 of the High Court (Civil Procedure) Rules as inserted by the High Court (Civil Procedure) Amendment Rules, CI 87 to strike out the statement of defence and counter claim of the defendant.

 

The case management conference, nonetheless proceeded with the admission of the witness statement of the plaintiff’s representative, Dacosta Owusu-Duodu as the evidence in chief. With it were tendered and admitted the following: Ex ‘A’ being a facility agreement between the parties dated the 5th of May, 2013. A demand notice for the two amounts of Ghc1, 956,250.00 and US$1,000.000.00 as Ex ‘B’ whiles Ex ‘C’ is a proposal made by defendant of its intent to liquidate its indebtedness. Account statements of defendant were also tendered as Ex ‘D’.

 

Plaintiff’s representative mounted the box and his witness statement and the exhibits were formally admitted into evidence. As defendant was fully aware of the date when the matter was adjourned for trial to commence because defendant’s counsel was served with a hearing notice and the affidavit of service duly filed before the court. The court adjourned to the 5th of July, 2016 and ordered another hearing notice to be served on counsel for defendant to appear to cross examine the plaintiff’s representative. Zoe, Akyea & Co were again served but failed to appear to cross examine Dacosta Owusu-Duodu. In the absence of the defendant to be in court to cross examine the plaintiff’s representative, the court discharged Plaintiff’s representative, as a witness.

 

It is the rule that the failure by a party to cross examine a witness on vital matters testified to is deemed to be an admission of those matters and a party need not call further evidence on that. See the following cases:

FOLI v AYIREBI [1966] GLR 627; BILLA v SALIFU [1971] 2 GLR 87; BEDIAKO v THE STATE [1963] 1 GLR 48; LANQUAYE v THE REPUBLIC [1976] 1 GLR 1; TAKORADI FLOUR MILL v SAMIR [2005-2006] SCGLR 882; BANDA v REPUBLIC [1975] 1 GLR 52.

 

Plaintiff’s testimony and documents evidencing its claim to the reliefs were not challenged and examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. Judgment is accordingly entered for the plaintiff against the defendant in respect of its claim of an amount of

i. Recovery of the sum of Ghc2, 092,984.85 (Two Million, Ninety two Thousand, Nine Hundred and eighty-Four Ghana cedis, Eighty-Five Pesewas)

ii. Interest on the sum of Ghc2, 092,984.85 at the rate of 5% per annum above the prevailing base rate of the Plaintiff from 31st July, 2014 till date of final judgment.

iii. Recovery of the sum US$1,104,732.94 (One Million, One Hundred and Four Thousand Seven and Thirty-Two United States Dollars, Ninety-Four Cents) or its cedi equivalent.

iv. Interest on the sum of US$1,104,732.94 at the rate of 12% per annum from 31st July, 2014 till date of final payment.

 

I will award cost of Ghc50.000.00 in favour of the plaintiff against defendant.