BSIC GHANA LIMITED v. GYAMFUA ABABIO INVESTMENTS LIMITED & ANOR
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
- Banking and Finance Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE of the High Court ruled on an interlocutory application by a bank seeking preservation of mortgaged real property at Plot No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi, pending final determination of a suit arising from the first respondents default on credit facilities. The second respondents property had been mortgaged as security. The applicant invoked Order 25 rule 2 of CI 47. The respondents opposed, asserting that the Atasomanso property had been substituted with a Dome Pillar 2, Accra property and that the applicants failure to reply or file a supplementary affidavit amounted to admission. Interpreting Order 11 rules 13 and 14 and authorities on admissions, the court held that silence did not operate as admission and joinder of issue applied. Considering the mortgage deeds restrictive covenants, the court found adequate protection and no evidence of dissipation. The application for a preservation order was refused, with no order as to costs.
RULING
In this application, the Plaintiff/Applicant (hereinafter called the “Applicant”) is praying for an order for preservation of the immovable property located at Plot No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi.
This application is supported by a 10 paragraph affidavit filed on behalf of the applicant on 15th February, 2019.
It is the applicant’s case that the instant suit stems from the 1st defendant’s/1strespondent’s default in paying credit facilities extended to it by the applicant despite the fact that the facilities have been called in and various demand notices have been served on the 1st respondent. The applicant contends that since the aforesaid property which belongs to the 2nd respondent was mortgaged to secure the loan facility, it is just and convenient for the property to be preserved by the court to prevent the dissipation of the same by the 2nd respondent. Counsel for the applicant submits that the application is grounded under Order 25 rule 2 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which gives the court the discretionary power to preserve the property pending the final determination of the case. In response to the respondents’ assertion that a different property has been offered to the applicant to substitute the property in issue, Counsel argues that there is no such documentary evidence to verify the assertion. That, there is no deed of discharge of the mortgage property in issue. He prays the court to grant the application.
The defendants/respondents (hereinafter called the “Respondents”) are opposed to the application and they have demonstrated their opposition in a 19 paragraph affidavit.
Counsel for the respondents submits that it is too late in the day for counsel for the applicant to question the non-availability of evidence relating to the fact that they have substituted the property in issue (property located at Plot No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi)with another property. Counsel makes reference to the statement of defence as well as the affidavit in opposition and submits that since the applicant failed to file a reply and a supplementary affidavit respectively to deny the averment that the mortgaged property has been substituted with a different property, it is deemed to have admitted the said substitution. He argues that by failing to deny this material fact, the applicant is caught by the principle in the case of Asumin v DIC and 640 others where the court held th