CITY INVESTMENT CO LTD vs. AMTAN (GH) LTD [1997-1998] 2 GLR 906

CITY INVESTMENT CO LTD v AMTAN (GH) LTD
[1997-1998] 2 GLR 906

Division: HIGH COURT, ACCRA

Date: 15 DECEMBER 1998

Before: AKOTO-BAMFO J

Practice and procedure—Affidavit—Attorney, by—Application by plaintiff – company for summary judgment against defendant—Application supported by affidavit deposed to by DQ, a lawful attorney of plaintiff—Whether attorney competent to depose to affidavit.

Money lending—Moneylender—Non-banking financial institutions—Plaintiff a corporate body set up under PNDCL 328 to inter alia lend money—Loan of ¢30 million granted by plaintiff to defendant at an interest of eight per cent per annum—Failure by defendant to retire facility even after period agreed for repayment—Application by plaintiff for summary judgment—Applica tion opposed on the basis that transaction too harsh and offending provisions of Cap 1 75—Whether plaintj’iff entitled to summary judgment in circumstances—Moneylenders Ordinance (Cap 176), s 2 (b) Financial Insti tutions (Non-banking) Law, 1993 (PNDCL 328).

The plaintiff-company, a non-banking financial institution set up under the Fminancial Institutions (Non-Banking) Law, 1993 (PNDCL 328), granted a loan facility of ¢30,000,000 to the defendant at its request for the reprint of primary textbooks for the Ministry of Education. The loan was to attract interest at the rate of eight per cent per annum. The defendant however failed to retire the facility even after the period agreed for repayment had expired. Whereupon the plaintiff-company filed an application in court for summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). The application was supported by an affidavit deposed to by one DQ who was the lawful attorney of the plaintiff-company. The defendant opposed the application on the ground, inter alia, that it was incompetent since the deponent of the supporting affidavit was not a member of the plaintiff- company. Counsel for the defendant also contended that the transaction was oppressive because the minterest rate was too high and offended the express provisions of the Loans Recovery Ordinance (Cap 175). Counsel further invited the court to re-open the whole transaction and to impose equitable terms.

Held:

(1) An attorney was a person vested with authority to stand in place of another and to act for him and was consequently competent to depose to an affidavit on behalf of that other person for whom he was an attorney. In the circumstance DQ, the lawful attorney of the plaintiff company, had capacity to depose to the supporting affidavit in the instant case.

(2) The activities of the plaintiff-company as a non-banking fminancial institution set up under PNDCL 328, was regulated by the Bank of Ghana in terms of PNDCL 328 and the regulations made thereunder. Hence the plaintiff- company and all those in the same category were empowered to [p.907] of [1997-1998] 2 GLR 906

determine their own interest rates as well as charges for services rendered by them; the only proviso was that they had to inform the Bank of Ghana of the transaction. Furthermore, as a corporate body set up under PNDCL 328 to, inter alia, lend money, the plaintiff-company did not fall under the ambit of the Moneylenders Ordinance (Cap 176) on account of the provision of section 2 thereof which expressly excluded such bodies. In the circum stances, the plaintiff-company clearly acted within its powers and the loan transaction would not be re-opened by the court in the absence of any vitiating factors like fraud and mistake.

APPLICATION for summary judgment by the plaintiff company, a non-banking financial institution, against the defendant which had failed to retire a loan granted it by the plaintiff-company even after the expiry of the period agreed for payment. The facts are sufficiently stated in the judgment.

J Ayikoi Otoo for the plaintiff-applicant.

Kobina Asiedu Aboagye for the defendant-respondent.

Akoto-Bamfo J. This in an application for summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended. In urging the court to grant the application, learned counsel for the plaintiff-applicant (hereinafter referred to as the plaintiff) submitted that the defendant was granted a loan facility of ¢30 million at its request for the reprint of primary text books for the Ministry of Education. The loan was to attract an interest at the rate of eight per cent and that the defendant had failed to retire the facility even though the period had expired.

For the defendants, it was contended that the application was incompetent since the deponent of the affidavit was not a member of the plaintiff company. Learned counsel for the defendant further submitted that the transaction was oppressive since the interest rate was too high and offended against the express provisions of the Loans Recovery Ordinance, Cap 175 (1951). He urged that the transaction be re-opened and equitable terms imposed.

The procedure under Order 14 of LN 140A enables a plaintiff to obtain judgment summarily when he can prove his claim clearly, and it would be inexpedient to allow the defendant to defend.

It is the defendant’s case that the deponent of the affidavit had no capacity since he was not a member of the company. The deponent is Dan Quaye who described himself as holding a power

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of attorney to collect loans on behalf of the company. This averment went unchallenged; and in the absence of any evidence to the contrary I find that he is the lawful attorney of the company. The issue is whether as a lawful attorney he can instruct a solicitor and depose to an affidavit.

What then is a power of attorney? Stroud ‘’s Judicial Dictionary (4ed) at page 205 has defined a “power of attorney” as “an authority whereby one is set in the turne, stead or place of another to act for him.” If an attorney is a person vested with authority to stand in the place of another and to act for him, can it be argued that he is incompetent to depose to an affidavit. The answer is definitely, No! the learned counsel’s argument on that leg therefore crumbles to the ground.

The next issue to be resolved is whether the transaction is harsh. The plaintiff company is a non-banking financial institution whose activities are regulated by the Bank of Ghana, as is evident from the enabling statute and regulations made thereunder by the Bank of Ghana. It is pertinent to note that under its guidelines the company and all those in the same category are empowered to determine their own interest rates as well as charges for service rendered by them; the only provision being that they must inform the Bank of Ghana of the transaction.

It is evident that the plaintiff acted within its powers. Learned counsel argued that in so far as it offended against the provisions of Cap 175, the transaction ought to be re-opened. The plaintiff is a non-banking financial institution set up tiunder Financia]l Institutions (Non-Banking) Laws, 1993 (PNDCL 328). It’s activities are regulated by the Bank of Ghana. The Moneylenders Ordinance, Cap 176 (1951) defines “Moneylender” in section 2 thereof in these terms:

“‘Moneylender’ means and includes every person whose bus- iness is that of money lending or who. carries on or advertises or announces himself or holds himself out in any way as carrying on that business . . . but shall not include — (b) any body corporate, incorporated or empowered by special Ordinance to lend money in accordance with such Ordinance.”

If the plaintiff is a body corporate set up under PNDCL 328 to, inter alia, lend money, it does not fall under the ambit of Cap 176.

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In these circumstances the definition in section 2 (b) thereof expressly excludes such bodies.

I must say that when the defendant applied for the loan, the terms were made known to him; he accepted these terms and he cannot now be heard to complain. Where two parties have voluntarily entered into a valid contract whose terms have been expressly stated, in the absence of any vitiating factors like fraud, mistake etc, it is my considered view that the court must not be shown to be substituting its terms for those agreed by the parties, if industry is not be set on the course of collapse.

Consequently, after carefully considering the arguments of both learned counsel, I find that the plaintiff has made out a case sufficiently to entitle him to judgment under Order 14 of LN 140A as amended. I accordingly enter judgment for the plaintiff against the defendant in the sum of ¢ 25,872,000 at the current bank rate of interest from 10 March 1998 to the date of final payment.

Judgment for the plaintiff.

SA