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March 27, 2023
HIGH COURT
GHANA
CORAM
On or about the 18th January, 2021, the Plaintiff herein, a limited liability company
engaged in the business of banking issued out a Writ of Summons against the three
Defendants herein praying for the following reliefs;
a. Recovery of the sum of GH¢ 267, 011.22 being the outstanding balance as at 17th
June, 2020 on the overdraft facility granted by Plaintiff to 1st Defendant on the
latter’s request
b. Interest on the said amount at the rate of forty percent (40%) per annum
(inclusive of penal interest of 6% and a default charge of two (2%) from 18th
June, 2020 to the date of final payment
c. Costs
Now, I will quote some pertinent paragraphs in the accompanying Statement of Claim
which sort of incriminate the 3rd Defendant/Applicant in this suit in order to situate
the application in its rightful perception. The said paragraphs are 3, 7, 9, and 9 thus;
“3. The 2nd and 3rd Defendants are Directors of the 1st Defendant Company and
guarantors of a facility granted the 1st Defendant by the Plaintiff which is the subject
matter of the instant proceedings. 2nd Defendant is also the Managing Director of 1st
Defendant Company”.
7. As a condition precedent to the grant of the facility, 2nd and 3rd Defendants on 3rd
November, 2017 jointly executed a Deed of Guarantee in favour of the Plaintiff
whereby 2nd and 3rd Defendants undertook to be liable to Plaintiff should 1st Defendant
fail to honour its obligations to Plaintiff.
8. Plaintiff says that the 1st Defendant has failed and or refused to meet the terms and
conditions of the overdrafts facility by defaulting in the terms of repayment in spite
of several and repeated demands made thereof’ and
“9. Plaintiff further avers that 2nd and 3rd Defendants have also failed and or refused
to make good the indebtedness in terms of the Deed of Guarantee they executed in
favour of the Plaintiff.”
I must admit that service of the processes including the Writ of Summons on the
Defendants was very arduous as they were evasive. The Plaintiff had to resort to
application after application for leave to serve the Defendants by way of substituted
service at every stage of the proceedings. At a point when the Plaintiff was satisfied
that the Defendants were duly served but failed, refused or neglected to enter
appearance to the Writ, they took out an application under Order 10 Rule 1(1) and (9)
of the C.I 47 filed on 4th February, 2022 and prayed the Court to enter final judgment
against the Defenda
AI Generated Summary
Justice Justin Kofi Dorgu of the High Court addressed an application by the 3rd Defendant to set aside a default judgment in a banking dispute. The Plaintiff bank sued the 1st Defendant company and its directors for recovery of GH¢ 267,011.22 on an overdraft, with 40% interest and costs, alleging a 2017 Deed of Guarantee executed by the 2nd and 3rd Defendants. Service had been difficult and proceeded by substituted service, after which the Court entered default judgment on 25 July 2022. On 25 April 2023, the 3rd Defendant moved to set aside, arguing resignation in April 2018, lack of notice, and breach of natural justice; the Plaintiff opposed. The Court held substituted service valid and resignation irrelevant to procedural obligations, but granted the motion because the application for final judgment contained no prima facie evidence the 3rd Defendant executed the guarantee. The judgment against the 3rd Defendant was set aside, attachments were released, costs of GH¢ 2,000 were awarded, and the Plaintiff was left at liberty to re-apply.