JOHANNA ABENA YANKSON & 3 ORS. VRS DELTA CAPITAL (C2/24/2023) [2023] GHACC 1113 (7 June 2023)

IN THE CIRCUIT COURT (11) HELD IN ACCRA ON MONDAY, 7TH DAY OF JUNE, 2023 BEFORE H/H ISAAC OHENEBA-KUFFOUR, CIRCUIT COURT JUDGE 1. JOHANNA ABENA YANKSON 2. MICHAEL K. N. YANKSON 3. PAUL K. YANKSON 4. KWEKU YANKSON VS. SUIT NO. C2/24/2023 PLAINTIFFS DELTA CAPITAL DEFENDANT PARTIES: 3rd Plaintiff present representing other Plaintiffs Defendant absent LEGAL REPRESENTATION: Linus Seku Esq. for Plaintiff/Applicant Michael Dzakpasu Esq. holding brief Defendant/Respondent for Christopher Lartey Esq. for RULING APPLICATION FOR SUMMARY JUDGMENT BACKGROUND On 9th September 2022, the Plaintiffs caused to be issued, a writ of summons, out of the registry of this Court against the Defendant. Among other things, the Plaintiffs sought the following reliefs against the Defendant; 1. a declaration that the Defendant company is in breach of its obligations to pay the sum of GH¢797,140 to the late Professor Paul William Kojo Yankson or the Plaintiffs. 2. recovery of the sum of GH¢797,140 being the outstanding balance on the Investment with the Defendant’s company. 3. interest on relief 2 above at the prevailing bank rate from June 2021 to the date of final payment. 4. damages for breach of contract. 5. costs including legal fees. The essence of the Plaintiffs' claim is that the Defendant’s company, being an investment-banking firm, licensed under the Securities and Exchange Commission (SEC) and the National Pensions Regulatory Authority (NPRA), has failed in paying investment funds due the Plaintiffs. It is the Plaintiffs' case that the late Professor Yankson had an investment worth GH¢790,147 with the Defendant for the benefit of the Plaintiffs. The first Plaintiff was allotted 25% of the investment with the rest shared among the three other Plaintiffs equally. The Plaintiffs asserted that the Defendant’s company in a letter dated 9th November 2021, confirmed that the late Professor Kojo Yankson had an investment with the Defendant’s company in the amount endorsed on the writ of summons. Sometime in 2021, the Plaintiffs demanded payment of their respective entitlements under the investment but the Defendant could not honour the request for payment by Plaintiffs. That is why the Plaintiffs are in Court. In the statement of Defence filed on 30th December 2022, the Defendant admitted that the Plaintiffs are the listed beneficiaries to the fund of the late Professor Paul William Kojo Yankson. The Defendant however raised the issue of capacity against the Plaintiffs. Further, in the statement of Defence, the Defendant admits 25 percent allocation to each of the Plaintiffs out of the Investment fund in question. The Defendant contends that the funds were not invested with the Defendant and therefore Plaintiffs cannot maintain a claim that the Defendant has refused or neglected to pay money due the Plaintiffs. The Defendant says it was their duty to invest the fund in a number of institutions including a certain Jislah Financial Services and the Defendant is working hard to recover same in order to pay the Plaintiffs. The Defendant asserts that the Plaintiffs' money shall be paid once the money invested with Jislah Financial Services and other institutions are recovered. The Defendant maintained that it is not directly indebted to the late Professor Paul Kojo Yankson or the Plaintiffs except that the Defendant received funds from the late Professor for purpose of investing for and on his behalf. Based on the above, the Defendant denied liability to the Plaintiffs’ claims. On 14th November 2022, Counsel for the Plaintiffs filed a motion on notice for Summary Judgment under Order 14 of C. I 47. The notice of Motion sought Summary Judgment for the sum of GH¢797,140 against the Defendant. Before the motion for Summary Judgment could be heard, the Defendant’s Counsel filed a motion on notice for an order to set aside the writ of summons and statement of claim for lack of capacity. The application was adjourned to be heard on 9th March 2023. It was further adjourned to 30th March 2023 at the instance of the defence counsel. When the case was called on 30th March 2023, Counsel for the Defendant was not present neither was the Defendant represented in court. After standing the case down and recalling it later, Defendant's Counsel was still not in Court. The Court, then differently constituted, dismissed the motion to set aside the writ of summons and awarded costs of GH¢5,000 in favour of Plaintiffs. This development paved the way for the instant application for Summary Judgment to be heard. The first Plaintiff deposed to an affidavit in support of the motion for Summary Judgment in which she stated that, the Defendant had voluntarily admitted it's liability to the Plaintiffs claim of GH¢797,140 by virtue of a letter dated 9th November 2021, which was attached to the affidavit as Exhibit C. It was in this letter where the Defendant confirmed the value of the Investment fund held on behalf of the Plaintiffs at the instance of the late Professor William Kojo Yankson. The letter further admitted that the first Plaintiff is entitled to 25% of the investments. In Exhibit D attached to the affidavit in support of the motion, it is revealed from the record of the Court that on 5th October 2022, Counsel for the Defendant indicated the willingness of the Defendant to settle the matter with the Plaintiffs where upon the court granted leave for the settlement. In an affidavit in opposition filed on 30th December 2022, a Clerk to Counsel for the Defendant deposed that, the respondent has a good defence to the Plaintiffs' claim. She stated further that the Defendant is not indebted to the late Professor Paul William Kojo Yankson nor the Plaintiffs because the Defendant only received funds from the late Professor for purpose of investing same for and on his behalf. The deponent continues that it was the duty of the Defendant to invest the funds for purpose of making returns to its clients but the money was not kept with the Defendant. The deponent stated in addition that the Defendant is not liable to the Plaintiffs' claims and that there are no triable issues to be determined by the Court in this case, by virtue of which this court was invited to dismiss the instant motion. In moving the instant application, Counsel for the Plaintiffs took the view that, the Defendant has no defence because it had admitted the Plaintiffs claim in Exhibit C. Counsel for Plaintiffs argued that if there is any investment contract between the Defendants and any financial institution, it was the duty of the Defendant to pursue such contracts since the Plaintiffs are not concerned. Counsel for Plaintiffs filed a memorandum of authorities which shall be addressed later in this ruling. I have relied extensively on the authorities in this ruling. Counsel for Defendant in responding to the application, cited the case of Ballast Nedam Ghana v. Horizon Marine Construction 2010 SGLR 435, wherein the Supreme Court held that our Courts only grant Summary Judgment when the Defendant is unable to set up a good defence or raise an issue, which ought to be tried. Counsel submitted further that, steps are being taken to recover funds invested for Professor Yankson but there have been delays to the steps. Counsel further reiterated the plea of the Defendant to be given the opportunity to settle the claim amicably. Application of the Relevant Law [Order 14 Rule 1, Rule 2(1), Rule 2(2) Rule 3(1) Rule 5(1)(a) of High Court (Civil Procedure) Rules, C. I 47 of 2004 applicable and applied here.] In Sanunu Vrs Salifu (4/13/08) [2009] GHASC 16 (22 April 2009), Baffoe Bonnie JSC indicated some instances when it would not be permissible to apply Order 14 Rule 1 of the C. I 47. His Lordship cited YIRENKYI v. TORMEKPEY [1987-88] 1 GLR 533 – 539, when the Defendant’s defence raised triable issues as to whether or not, for instance, the Plaintiff himself or by his agent inspected a vehicle before the price was paid, and whether or not the failure to effect the proper transfer did not make the Plaintiff owner of the vehicle. The court held that the application for Summary Judgment under Order 14 of the High Court (Civil Procedure) Rules, 1954 (L. N. 140A) as amended by Rule 2 of the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (L. I. 1129) was incompetent. Bowen L. J. said in Blaiberg v. Abrams (1910) 77 L. T. J. 255, C. A., "In deciding whether the defence set up is a real defence or not, all the circumstances must be looked at." It was also noted by Kpegah J, as he then was in YARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11, that Order 14 “… prescribes the procedure to be followed by a Plaintiff who wishes to obtain Summary Judgment against his adversary. It does not confer on a Plaintiff an absolute right to proceed for Summary Judgment in every case. Its purpose or aim is to permit a Plaintiff to obtain Summary Judgment without necessarily going to trial if his claim is clear and the Defendant is unable to set up any bonafide defence, or create a situation indicating there are triable issues between him and the Plaintiff.” (emphasis added) At pages 14 and 15 of the report His Lordship went ahead to state the conditions under which the court’s jurisdiction can be invoked under Order 14. He said, “The first is that the Defendant must have been served with a statement of claim…The important consideration is whether the Plaintiff’s claim is clear and whether the Defendant has any defence to it. Another important pre-requisite is that the Defendant must have "entered an appearance" to the Plaintiff’s writ... If there is no appearance, judgment by default may be entered under Order 13"... An averment that the Defendant has no defence to the action should be an integral part of the affidavit; not to downplay the fact that facts must be deposed to indicating that the Plaintiff’s claim is real and considerably unimpeachable.” What this means is that a judge must come to conclusion that on the face of the claim, there is no defence to the action. A defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact. See also the case of Atlanta Timber Co vs Victoria Timber Co Ltd 1962 1 GLR 221 where Charles J said: (1) the purpose of Order 14, Rule 1 of the Rules of court is to enable a Plaintiff to obtain Summary Judgment without trial, if he can prove his claim clearly. Thus even though a statement of defence may have been filed, the court is not precluded from entertaining an application for Summary Judgment under Order 14, Rule 1;. In Windworth Holdings (pty) Ltd.v. Dupaul Wood Treatment (Gh) Ltd. (J4 66 of 2018) [2019] GHASC 4 (23 January 2019), Gbadegbe JSC stated eruditely that "The disposal of the issue of capacity in the matter by the trial Court, necessarily implied a finding that the Plaintiff had a cause of action vested in him regarding the subject matter of the plaint, including the issue of taking the benefit of the contract between the Defendant and the entity on whose behalf he was pursuing the claim....; It is unacceptable that the Defendant who accepted absolute liability for the amount in respect of which the writ herein issued and offered to pay the indebtedness in instalments but failed so to do can be said either in conscience or principle to have a defense to the action herein. The acceptance of liability by the Defendant in the circumstances of this case, created a conclusive presumption under Sections 24 and 26 of the Evidence Act, NRCD 323. By the said provisions, we are precluded from receiving evidence to the contrary of the presumed fact which in this case is the admission of liability by the Defendant. It repays to refer to the said provisions as follows: SECTION 24(1) “Where the basic facts that give rise to a conclusive presumption are found or otherwise established in the action, no evidence contrary to the presumed fact may be considered by the tribunal of fact. SECTION 26: Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest, in any proceedings between that party or his successors in interest and such relying person or his successors in interest.” In this case, the effect of the Defendant's admission of receiving funds to invest on behalf of the late Professor makes the denial of liability by Defendant merely, a denial that was not made in good faith. That denial cannot co-exist with the admission of receiving money to invest and produce returns to the investor and the beneficiaries. The Plaintiffs placed reliance on the admission and legitimately expected payment from the Defendant. The statutory preclusion arising out of the conclusive presumption aside, it is difficult to comprehend how the Defendant who admits of receiving money to invest and account of yields to the investor cannot accept liability to pay the invested funds to the Plaintiffs who are acknowledged beneficiaries. As the Evidence Act precludes us from considering a view of facts contrary to that arising from the admission of receiving the money by the Defendant, there cannot be any legitimate denial of liability to constitute a bar to the application of Order 14 Rule 1 in this case. CONCLUSION Now to the question of the sum to be awarded. Indeed, Order 14 Rule 5 of CI 47 Sub- Rule 1 of the said Rule provides: “On the hearing of the application, the Court may (a) give such judgment for the Plaintiff against the Defendant on the relevant claim or part of the claim as may be just having regard to nature of the remedy or relief sought....” The Plaintiffs asked only for Summary Judgment in respect of GH¢797,140.00 on the notice of motion for Summary Judgment, whereas the writ of summons had more reliefs endorsed thereon. I am therefore inclined to grant the application on the reasons given above and thereby award Summary Judgment in respect of GH¢797,140.00 in favour of Plaintiffs against Defendant. Even though the Plaintiffs did not ask for interest on the stated amount on the motion notice, interest is largely a question of fact and law under CI 52 and mostly applicable where a party is found to have unduly held money from another person for an unacceptable length of time. I award interest on the judgment sum at the prevailing bank rate from June 2021 (See Statement of Claim) till date of final payment. The Plaintiffs approached the Defendant in 2021 but they failed to honour the obligation of making payment to the Plaintiffs. At the time of seeking leave to enter late appearance, the Counsel for Defendant indicated their willingness to settle the matter amicably with Plaintiffs. Counsel was however found to be busily filing applications in order to explore weaknesses in Plaintiffs’ case. That is vexatious to say the least, but I do not intend to award any huge costs. I reckon that the Plaintiffs may opt to pursue a hearing to determine the claim of general damages. I award a cost of GH¢15,000.00 in favour of Plaintiffs. (SGD) H/H ISAAC OHENEBA-KUFFOUR CIRCUIT COURT JUDGE 10