January 19, 2023
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
After a 2007 loan of US$415,121.25 from a plaintiff bank to the 1st defendant company, guaranteed by Dr. Henry Broni-Amponsah and Henrietta Coffie, the bank obtained summary judgment and executed against the defendants’ properties when repayment default persisted. The High Court later set aside the attachment and ordered an account reconciliation using the May 2015 exchange rate, appointing Mr. Charles Idun as independent referee. Exhibit CE1 recorded defendants’ payments totaling US$346,157.80 and applied US$3.92 as at 14/5/2015, leading the High Court to find the bank had taken GH¢209,863.79 in excess and to order a refund. On appeal, Justice Anthony Oppong, JA, rejected challenges to the referee’s methodology and struck out a vague misdirection ground under Rule 8(4). Finding no compelling reason to displace the expert’s report, the Court of Appeal dismissed the appeal with costs of GH¢10,000.
ANTHONY OPPONG, JA: The Plaintiff bank granted loan facility to 1st defendant company on or about March 2007.
The loan facility was guaranteed by the managing directors of 1st defendant company, namely, Dr.
Henry Broni-Amponsah and Henrieꢀa Cofie, the 2nd and 3rd defendants respectively.
The amount involved was $415,121.25 and it was to be paid back within two years six months.
The plaintiff bank averred that as at 21st January 2011 the 1st defendant’s total indebtedness to the plaintiff bank on which interest continued to accrue at the prevailing bank’s lending rate stood at GH¢535,666.57 Despite demands made on defendants to pay, the default remained undischarged.
Consequently, plaintiff bank sued the defendants jointly and severally for: “(i)ꢁ Recovery of the sum of GH⊄535,666.57 being the balance outstanding on banking facilities granted by the plaintiff to the 1st defendant as at 21st January 2011 or in the alternative:
a. Judicial sale of 2nd defendant’s mortgage property situate at Ashalley Botwe b. Judicial sale of all properties both movable and immovable tangible and intangible identified as belonging to the 2nd and 3rd defendants by virtue of the guarantee they executed in favour of the plaintiff (ii)ꢀ Interest on the said amounts at the prevailing Bank Lending Rate from 21st January 2011, up to and inclusive to the day of final payment (iii)ꢀ Costs For the sake of convenience, the nomenclature of the parties at the trial high court is maintained in this appeal.
On or about 21st October 2011, the plaintiff bank filed an application for summary judgement against the defendants, contending that the laꢀer had no reasonable defence to its claim.
The trial High Court entered summary judgment against the defendants whereupon the plaintiff filed entry of judgment (as amended) after trial.
Consequently, the plaintiff applied for and obtained a writ of fifa and aꢀached the properties of the defendants.
The plaintiff bank then filed a motion on 17th May 2014 for a reserved price of the aꢀached mortgaged properties of 1st defendant for purposes of auction.
The trial High Court granted the application on 22nd February, 2016 in spite of the fact that the 1st defendant had filed an affidavit in opposition wherein one Charles Teꢀeh, the manager of 1st defendant company had deposed that “1st defendant has made a total of $341,989 payments to the plaintiff/applicant with the last payment being made on 11/5/2015” Consequently, the defendants filed a motion to set aside the