December 22, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
Plaintiff bank, a Ghanaian financial institution, sued a limited liability company (1st Defendant), its director (2nd Defendant), and a property owner (3rd Defendant) to recover GHȼ150,896.53 as the balance on a 2010 loan facility and interest from 1 April 2012, or alternatively to enforce a judicial sale of the collateralized property at Adenta, Accra. The facility of GHȼ100,000 carried 21.95% interest, a 12‑month tenor, and a three‑month moratorium. To secure repayment, the 2nd Defendant executed an indemnity and the 3rd Defendant mortgaged his residence. The bank’s Relationship Manager, Emily Asante, and recoveries officer, Robert Afedo, tendered documentary evidence showing approval, disbursement into the 1st Defendant’s account, and statements evidencing indebtedness. The 1st Defendant’s Managing Director accepted the facility in writing, and EXHIBIT M recorded the Defendants’ proposal to liquidate the debt in six months. At trial, the 2nd Defendant admitted the debt and sought indulgence and a waiver of interest, which the Court refused, holding the bank entitled to contractual interest and, failing payment, ordering judicial sale of Property No. 16 Odoi Avenue, 13 Market Street, Adenta. Costs were waived.
On the 9th day of May, 2012 the Plaintiff issued a writ against the Defendants herein praying for the following reliefs among others.
i) Recovery of an amount of One Hundred and Fifty Thousand, Eight Hundred and Ninety Six Ghana Cedis, Fifty Three Pesewas (GHȼ150, 896. 53) being the balance outstanding on the credit facility extended to the Defendants inclusive of interest as at 31st March, 2012
ii) Interest on the outstanding amount of One Hundred and Fifty Thousand, Eight Hundred and Ninety Six Ghana Cedis, Fifty Three Pesewas (GHȼ150, 895. 53) at the prevailing commercial rate from 1st April, 2012. Or in the alternative
iii) An order for the judicial sale of the property used to secure the facility.
The Plaintiff avers that it is a financial institution established under the laws of Ghana to engage in the business of banking whilst the 1st Defendant is described as a limited liability company and a customer of Plaintiff.
It is the case of the Plaintiff that in September, 2010, the 1st Defendant applied for and was granted a loan facility of One Hundred Thousand Ghana Cedis (GHȼ100, 000. 00) at an interest rate of 21. 95% per annum, subject to change without recourse to the Defendants.
This facility was to be repaid within a period of twelve (12)months with a three (3) month moratorium on both principal and interest. To secure the facility, the 2nd Defendant, a director of the 1st Defendant executed a contract of indemnity in favour of Plaintiff bank.
The 3rd Defendant for his part, secured the facility with a charge over his residential property situate at Adenta in Accra.
The facility according to Plaintiff has expired but the Defendants have failed to retire the loan in spite of persistent demands on them to do so.
It is this default on the part of defendants that has necessitated the institution of the present suit.
The Defendants by a Statement of Defence and Counterclaim filed on the 5th day of July, 2012 denied ever being granted any loan facility by Plaintiff.
They charge, that the Plaintiff having taken custody their title documents without granting them the facility was guilty of breach of trust. They therefore counterclaimed for the following: a) Damages for breach of trust. b) Perpetual injunction restraining the Plaintiff, his agents, assigns and workmen from demanding any loan facility from Defendant.
c) Costs.
Plaintiff in its amended reply and defence to the counterclaim essentially denied Defendants assertions and maintained