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R U L I N G
This ruling is in respect of an
application by the Plaintiff
Company for summary judgment
filed on 11th
January, 2012.
On 1st February, 2011
the Plaintiff/Applicant caused a
writ to be issued in this court
claiming against the Defendants
jointly and severally for the
following reliefs:
i)
Payment of the sum of
US$10,167.00 or its equivalent
being a loan amount and interest
as of 28th January,
2011.
ii)
Interest on the said sum from 28th
January, 2011 at the agreed rate
to the date of final payment;
iii)
Costs, including lawyers.
After the defendants were served
they entered appearance through
their Lawyers on 15th
February, 2011 and subsequently
filed their statement of
defence. Then on 11th
January, 2012 the Plaintiff
brought the instant
application. The procedure and
principles governing
applications for summary
judgment are contained in Order
14 of the High Court (Civil
Procedure) Rules, 2004 1 (C.I.
47), Rule 1 of Order 14
provides as follows:-
“Where in an action a defendant
has been served with a statement
of claim and has filed
appearance, the Plaintiff may on
notice apply to the court for
judgment against the defendant
on the ground that the defendant
has no defence to a claim
included in the writ, or to a
particular part of such a claim,
or that the defendant has no
defence to such a claim or part
of a claim, except as to the
amount of any damages claimed.”
It is based on the above rule
that the Plaintiff filed the
instant application. In the
affidavit in support of the
application the Plaintiff
deposed to the facts with
exhibits to prove his claim. It
is the case of the Plaintiff
that at the request of the 1st
Defendant, Theophilus Akatugba,
the Plaintiff /Company granted
to him a loan facility on 28th
April, 2010 in the sum of
US$10,000.00. The Plaintiff
Company exhibited the Loan
Agreement; statutory declaration
by the 1st Defendant,
Offer Letter and Receipt to
support its case. The 2nd
Defendant Mrs. Gloria Akatugba,
guaranteed the said loan. The
Plaintiff exhibited the
Guarantor’s Agreement duly
executed by the 2nd
Defendant.
It is further the Plaintiff’s
case that in partial fulfillment
of the loan agreement the 1st
Defendant made part payments to
the Plaintiff. The Plaintiff
exhibited receipts of the said
part payments. Then on 29th
September, 2010 the 1st
Defendant wrote to the Plaintiff
and requested that the Plaintiff
grants him the opportunity to
re-organize his payments of the
outstanding amounts owed upon
stated terms. The Plaintiff
company by its letter in reply
dated 10th October,
2010 expressed misgivings about
the 1st Defendant’s
offer as he had failed to comply
with the payment plan. The
Plaintiff further warned the 1st
Defendant that it will not
hesitate to take the necessary
legal action possible to recover
its money. The Plaintiff again
exhibited the two letters.
The Defendants oppose the
application for summary judgment
stating that the application is
misconceived, incompetent and
unmeritorious for their defence
discloses trial issues which
necessitates a full trial.
The only issue therefore is
whether the Defendants defence
discloses triable issues. In
their defence the 2nd
Defendant denies that she
guaranteed any loan for
anybody. She also denies that
the Plaintiff granted a loan to
the 1st Defendant to
which the latter got indebted to
the Plaintiff in the sum of
US$10,167.00 as at 28th
January, 2011. On his part the
1st Defendant denies
owing the Plaintiff US$10,167.00
as at 28th January,
2011 and state that at all
material times, he made it known
to the Plaintiff that the
facility that he was taking was
to execute a contract he had won
and that if it happens that
extra funds are needed to
complete the contract, he will
fall on the Plaintiff in order
to be able to pay the facility.
The Plaintiff assured him that
he will be given extra funds if
same became necessary in order
to assist him service the
facility granted. However when
he applied for the extra funds
as agreed in order to be able to
complete the said contract, get
paid and repay the facility, the
Plaintiff refused to grant him
with the result that he has not
been able to complete the
contract.
There is abundant evidence from
the exhibits attached to the
Plaintiff affidavit in support
of the instant application,
which have not been denied by
the Defendants, that the parties
on 28th April, 2010
entered into an agreement by
which the Plaintiff granted a
loan of US$10,000.00 to the 1st
Defendant for a period of six
(6) months at an interest of 4%
per month. As security for the
said loan the 2nd
Defendant was to guarantee the
payment of the loan (See Exhibit
AD1). The 2nd
Defendant duly executed the
guarantor’s agreement (See
Exhibit AD5).
There is further evidence that
the 1st Defendant
made part payments of the debt
(See Exhibits AD6, AD7 and
AD8). The 1st
Defendant failed to liquidate
the remaining balance and wrote
to the Plaintiff on 29th
September, 2010 pleading to pay
the balance on stated terms.
The Plaintiff replied the 1st
Defendant by letter dated 8th
October, 2010 threatening to
take legal action to recover the
money. (See Exhibits AD9 and
AD10) respectively).
From Exhibit 9 if it were true
that the Plaintiff agreed to
provide the 1st
Defendant with more funds as and
when he needed it, he would have
said so. The 1st
Defendant never made mention of
that agreement. So the defence
of the 1st Defendant
claiming that there was such an
agreement is an after thought
and palpably untrue.
Similarly the 2nd
Defendant’s defence that she
never acted as a guarantor of
the loan in issue is completely
false in the light of Exhibit
AD5.
Accordingly there is evidence
which proves that the Defendants
defaulted in repaying the loan.
The Defendant’s have no defence
to the action. Judgment is
therefore entered for the
Plaintiff on its claims as
endorsed on the Writ of Summons.
The Plaintiff is also awarded
cost of GH¢3,000.00.
COUNSEL:
1. Mr. James Owura
Mensah for Plaintiff/Applicant
2. Mr. Yaw Adubofour for
the Defendants/Respondents.
UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
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