UNIQUE TRUST LOSES APPEAL

THE Court of Appeal has dismissed an appeal by Unique Trust Financial Services Limited against a judgement of an Accra High Court that the company should pay ¢400 million to Ghatalia Limited for the wrongful sale of its goods.
The court, however, said instead of the ¢400 million which was due Ghatalia Limited, Unique Trust should pay ¢375.2 million and costs of ¢50 million with interest at the prevailing bank rate since July 22, 2005 and additional costs of ¢10 million.
The facts that led to the action at the High Court and the subsequent appeal were that Ghatalia imported assorted goods from Italy to Ghana for sale.
When the goods arrived at the Tema port, the company, due to financial constraints, was unable to clear the goods and, therefore, approached Unique Trust for a loan facility of ¢100 million on March 7, 2003.
The facility was to attract interest at the rate of nine per cent per month payable within 90 days and secured by the imported goods, which were kept in Unique Trust’s warehouse at Tema.
Ghatalia was able to pay ¢24.8 million and was unable to pay any extra money to Unique Trust until another company called West Coast Company Limited paid ¢25 million at the instance of Ghatalia to Unique Trust.
Subsequent to the payment of the ¢25 million on behalf of Ghatalia, the company could not make any further payment to Unique Trust.
Therefore, Unique Trust, without notice to Ghatalia, sold the remaining goods and offered no accounts or particulars of the sale to the company.
“Indeed, the quantity of the goods, their prices and date(s) of the sale were not supplied to the plaintiff (Ghatalia)”, said Mr Justice Anin Yeboah, who read the court’s unanimous decision.
The court was presided over by Mr Justice B. T. Aryeetey, with Mr Justice Osafo Sampong as the other member.
Mr Justice Anin Yeboah said aggrieved by the conduct of Unique Trust, Ghatalia commenced action at the High Court, while Unique Trust counter-claimed ¢252,511,997.26 being the payment of outstanding balance owed it.
He said according to Unique Trust, the amount realised from the sale of the assorted goods was only ¢50 million.
According to him, the trial judge entered judgement for Ghatalia on most of the reliefs sought and also entered judgement for Unique Trust for ¢255,511,997.29 but failed to award interest on it.
He said counsel for Unique Trust argued that by the terms of the loan agreement, Unique Trust had the power to sell the goods without reference to Ghatalia but that was ignored by the trial judge and in his opinion, the trial judge found unconvincing how a serious clause could be inserted in ink in the schedule of the agreement where the goods were described and not in the body of the agreement itself.
Mr Justice Anin Yeboah said another point raised by Unique Trust against the judgement was that the trial judge relied on an Authority Note to Stefano Pace to empower Unique Trust to sell the goods.
He said the trial judge was right when he questioned that the authority note did not give authority to Mr Pace to authorise Unique Trust to sell the goods on default as alleged because he did not understand why four of the directors of Ghatalia signed the authority note and Mr Pace could bypass the company’s representative in Ghana, Mr D.T. Darko, who, on record, executed the loan agreement, to authorise the sale of the goods.
On why the trial judge did not award interest in favour of Unique Trust, the judge said it was clear that it unilaterally abrogated the contract and proceeded to sell the goods illegally and it would be unconscionable under the circumstance for any court to award interest since there was no existing contract left for enforcement under the circumstance.
Mr Justice Anin Yeboah said since Ghatalia sold ¢24.8 million of the goods, it was wrong for the trial judge to have granted the company the entire amount of ¢400 million and, therefore, set aside that order and replaced it with ¢375.2 million.