BANK OF AFRICA (GH) LIMITED VS MAGNA INTERNATIONAL COMPANY LIMITED
2024
COURT OF APPEAL
GHANA
CORAM
- SENYO DZAMEFE JA (PRESIDING)
- NOVISI ARYENE JA
- GIFTY AGYEI ADDO JA
Areas of Law
- Civil Procedure
- Corporate Law
- Banking and Finance Law
- Contract Law
2024
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Bank of Africa (GH) Limited granted loan facilities to a company, leaving an outstanding balance of Gh a66,661,604.40 as of 1 October 2016. The bank first petitioned under the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) to liquidate the company in Suit No. MISC/0055/2017 in Accra. While that petition was stayed by the Court of Appeal on 10 October 2017, the bank also sued by writ in Suit No. CM/BFS/0087/2018 to recover the same indebtedness and contractual interest from the company and guarantors. In the writ case, the company moved to set aside the writ and statement of claim, alleging multiplicity (lis alibi pendens), pendency of the petition, and a licensing defect. The High Court dismissed the motion but put the bank to an election and ordered the writ case to proceed. On appeal, JA Gifty Agyei Addo held that, given the subsisting stay, the High Court lacked jurisdiction to co ad mingle the stayed petition with the writ suit or compel an election, set aside the ruling, and allowed the appeal without costs.
GIFTY AGYEI ADDO, JA
INTRODUCTION
This is an appeal by the Defendant as Appellant against the ruling of the Commercial Court Division of the High Court, Accra. The impugned decision is dated 24th May 2018. For ease of reference, we shall maintain the designation of the parties in the court below, that is, the Plaintiff and Defendant.
BACKGROUND
On 28th day of March 2017, the Plaintiff as Petitioner in Suit No. MISC/0055/2017, instituted an action under the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) for the liquidation of the Defendant in the Commercial Court Division of the High Court, Accra, by reason of the Defendant’s failure to retire its indebtedness to it, which indebtedness stood at (Gh¢6,661,604.40) as at 1st October 2016, being the outstanding balance on loan facilities it granted the Defendant.
On 31st January 2018, the Plaintiff, subsequent to the above action, commenced another action by a Writ of Summons against the Defendant, as 1st Defendant, together with three other Defendants, in Suit No. CM/BFS/0087/2018, in another court of the Commercial Court Division of the High Court, Accra. In the latter suit, the Plaintiff sought the following reliefs:
i. Recovery of the sum of Six Million, Six Hundred and Sixty-one Thousand, Six Hundred and Four Ghana Cedis and Forty Pesewas (Gh¢6,661,604.40) being the outstanding balance on the facilities as at October 1, 2016, which said amount is due and owing to Plaintiff by the Defendants and which amount the Defendants have failed and/or refused to pay to Plaintiff in spite of several and repeated demands made therefore.
ii. Interest on the said amount at the agreed rate of 27% per annum from October 1, 2016 until date of final payment.
iii. Penal interest of 6% per month from September 25, 2013 until date of final payment.
iv. Legal fee being 10% of the sum due the Plaintiff at the date of final payment.
v. Costs.
With the action by Petition and the other by a Writ of Summons both pending, the Defendant, applied to have set aside the Writ of Summons and the accompanying Statement of claim. Having been dragged to court in two suits of similar import, the Defendant was expected, on the ground of lis alibi pendis, to apply in either of the suits for the Plaintiff, Bank of Africa (GH) Limited, to be put to its election. The Defendant however, decided rather to have set aside the Writ of Summons in Suit No CM/BFS/0087/2018.
THE CASE OF THE DEFENDANT TO HAVE SET ASIDE THE WRIT OF SU