AGRICULTURAL DEVELOPMENT BANK VRS PBC LIMITED (CM/BFS/0555/2023) [2023] GHAHC 419 (30 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION (COURT 1) OF THE HIGH COURT OF JUSTICE ACCRA, HELD ON MONDAY THE 30TH DAY OF OCTOBER, 2023 BEFORE HER LADYSHIP, JUSTICE SHEILA MINTA SUIT NO. CM/BFS/0555/2023 1. AGRICULTURAL DEVELOPMENT BANK - PLAINTIFFS 2. BANK OF AFRICA GHANA LTD. 3. CALBANK PLC 4. GCB BNAK PLC 5. UNIVERSAL MERCHANT BANK LTD. 6. UNITED BANK FOR AFRICA (GH) VRS. PBC LIMITED - DEFENDANT ---------------------------------------------------------------------------------------------------- JUDGMENT On 9th October, 2023, the Plaintiffs/Applicants who are financial institutions engaging in the business of banking, including money lending filed an application for Summary Judgment under Order 14 of C. I.47 against the Defendant for the following reliefs: a. In respect of the 1st Plaintiff, an order for the payment of the amount of Forty-Nine Million, Two Hundred and Fifty-Seven Thousand, Six Hundred and Three Ghana Cedis and Thirty-three pesewas (GH¢49,257,603.33). b. In respect of the 2nd Plaintiff, an order for the payment of the amount of Eleven Million, Two Hundred and Nineteen Thousand, Six Hundred and Forty-One Ghana Cedis and Seven-Two Pesewas (GH¢11,219,641.72). c. In respect of the 3rd Plaintiff, an order for the payment of the amount of Seventy- One Million, Forty-Nine Thousand and Seventy-Two Ghana Cedis and Seventy- Three Pesewas (GH¢71,049,072.73). d. In respect of 4th Plaintiff, an order for the payment of the amount of One Hundred and Eight Million, Four Hundred and Six-Nine Thousand, Two Hundred and Fifty-Seven Ghana Cedis and Eight-Four Pesewas (GH¢108,469,257.84). e. In respect of 5th Plaintiff, an order for the payment of the amount of Forty-Two Million, Two Hundred and Ninety-Five Thousand, and Three Hundred and Eighty-Four Ghana Cedis and Sixty-Nine Pesewas (GH¢42,295,384.69). f. In respect of the 6th Plaintiff, an order for the payment of the amount of Thirteen Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Twenty-Seven Ghana Cedis and Eighty-Four Pesewas (GH¢13,728,627.84). g. An order for the payment of the agreed interest of 2% on the amounts stated in (a) to (f) above from the 1st of July, 2022 until date of final payment. h. An order for the payment of cost of the action assessed at GH¢13,500,000. The said applications was served on the Defendant on 10th October, 2023 and an Affidavit in Opposition on 27th October, 2023 containing seven paragraphs. The Applicants case is that, they executed a consolidated agreement with the Defendant/Respondent to amend, restructure and consolidate existing loans between each Plaintiff and attached Exhibit ‘CB1’ in proof of their claim. According to the Applicants, at the time the loan restructuring agreement was executed, the total indebtedness of the Defendant to the Plaintiffs/Applicants stood at GH¢495,024,390.00 to be paid in fifteen (15) equal semi- annual capital payment. That the Defendant has not kept to the agreed instalmental terms of payment as contained in Exhibit ‘CB1’. According to the Plaintiffs/Applicants, since June, 2022, the agreed payments have not been made, and therefore per the terms of the agreement, the whole debt have become due and payable. The Plaintiffs/Applicants therefore together claim the sum endorsed on the Writ of Summons. The Defendant/Respondent filed a three paragraph Statement of Defence on 8th September, 2023 in which bare denials were made to the claims of the Plaintiffs. The Defendant/Respondent also filed a seven paragraph Affidavit in Opposition basically to say that moves have been initiated by the Defendant to get what was owed the various institutions paid. I have reviewed the application for Summary Judgment, the affidavits in support and in opposition and the annexures attached. I have heard from both Counsel, and considered the cases cited. I have further considered the principle governing the grant or otherwise of applications of this nature. It has been established in several cases that, jurisdiction to grant Summary Judgment is exercised for purposes of facilitating the early conclusions of actions where the Defendant has no cogent or valid defence upon the consideration of the totality of the evidence before the Court. Order 14 of C. I.41 is not intended to shut out the Defendant from putting forth its fair defence or reasonable grounds for setting up a defence. See the case of Ballast Nedam Ghana BV vrs. Horizon Marine Construction (2010) SCGLR, 435, where the Supreme Court stated “… where the Defendant expresses an intention to defend an action, the Court may only grant the application in cases where the Defendant is unable to set up a good defence or raise an issue which ought to be tried”. From the evidence before the Court, the Plaintiffs have been able to verify their claims by attaching the agreement between the parties, being Exhibit ‘CB1’, there is also evidence that the Defendant has failed to meet its obligation towards the Plaintiffs in Exhibit ‘CB4B’, being the Defendant’s letter to the Plaintiffs. In the same Exhibit, the Defendant admitted its indebtedness to the Plaintiffs. The Defendant has been unable to set up a bonafide defence nor indicated to the Court that there are triable issues between the parties. I also refer to the case of Yatel Boat Building Company vrs. Annan (1991) 2 GLR, 11. From the foregoing, I am of the opinion that there are no triable issues set forth by the Defendant, and therefore no useful purpose could be served by going through a full trial. I hereby enter Judgment in favour of the Plaintiffs against the Defendant as follows: 1. In respect of the 1st Plaintiff, for the sum of GH¢49,257,603.33 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. 2. In respect of the 2nd Plaintiff, the sum of Gh¢11,219,641.72 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. 3. In respect of the 3rd Plaintiff the sum of GH¢71,749,072.73 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. 4. In respect of the 4th Plaintiff, the sum of GH¢108,469,257.84 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. 5. In respect of the 5th Plaintiff, the sum of GH¢42,295,384.69 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. 6. In respect of the 6th Plaintiff, the sum of GH¢13,728,627.84 together with interest on the said sum at the agreed rate of 2% per annum from 1st July, 2022 till date of final payment. On the issue of cost, Counsel for the Plaintiff prayed the Court to award cost of 7.5% of the total debt, assessed at GH¢13,500,000.00. I am unable to accede to this prayer by Counsel for the Plaintiffs, and will exercise my discretion on this issue of cost. I will therefore in exercising that discretion, award cost of Six Hundred Thousand Ghana Cedis (GH¢600,000.00) in favour of the Plaintiffs against the Defendant. SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS: PARTIES: PLAINTIFFS REPRESENTED BY EDMUND AKRONG DEFENDANT REPRESENTED BY KOBINA ENYAN DADSON COUNSEL: BOBBY BANSON, ESQ., FOR PLAINTIFFS/APPLICANTS – PRESENT NANA YAW OSEI, ESQ., FOR DEFENDANT/RESPONDENT – PRESENT AUTHORITIES 1. BALLAST NEDAM GHANA BV VRS. HORIZON MARINE CONSTRUCTION (2010) SCGLR, 435 2. YATEL BOAT BUILDING COMPANY VRS. ANNAN (1991) 2 GLR, 11 6