CAL BANK LTD VS EUJOYS MOTORCYCLES LTD & ANOR
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP GEORGE K. KOOMSON (J).
Areas of Law
- Civil Procedure
- Evidence Law
- Commercial Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case revolves around the 1st defendant's default on a loan facility granted by the plaintiff, which was personally guaranteed by the 2nd defendant. The plaintiff sought repayment of the outstanding balance, interest, and judicial sale of the mortgaged properties. The court struck out the defendants' statement of defense for non-compliance with procedural rules. The plaintiff successfully proved its claim through documentary evidence and witness testimony. The court ruled in favor of the plaintiff, awarding the outstanding loan amount, interest, and costs, and allowing the sale of the mortgaged properties.
The 1st defendant was granted a medium-term loan facility of GHS 308, 445.23 in the nature of a restructuring of an existing debt. This was done to enable the 1st defendant to purchase motorbikes for its business. The facility was granted on the 1st of December, 2013, and was to expire on the 30th of October, 2014, at an interest rate of 30% per annum. The 2nd defendant signed a personal guarantee to be personally liable to the bank upon the default of the 1st defendant company, of which the 2nd defendant is the Managing Director. The 2nd defendant further mortgaged his landed properties, namely, Parcel No. 29 Block 8, Section 195, Ablekuma, Accra, and Parcel No. 56, Block 4, Section 014, Adabraka, Accra.
The failure of the 1st defendant to retire the loan facility caused the plaintiff to issue the instant suit asking for:
a) The payment of GHS 165, 044.01 being the outstanding balance as of February 9, 2014.
b) An interest at the contractual rate of 30% per annum from February 2014 to the date of final judgment and thereafter interest at the prevailing bank rate from the date of judgment until the date of final payment.
c) In addition or in the alternative, an order for the judicial sale of the mortgaged properties situated and being at Ablekuma and Adabraka, all in Accra in the Greater Accra Region of Ghana.
d) Costs.
It is noted at the onset that when the suit was referred for trial after the breakdown of pre-trial settlement, the court made an order on the 18th of March, 2015, for parties to file and exchange documents. This was followed by an order on the 21st of April, 2015, for parties to file their respective witness statements. These two orders were all made in the presence of Defence Counsel Josiah Tetteh being led by Adjei Nuamah.
On the 14th of December, 2015, the court struck out the statement of defence filed by the defendant in compliance with Order 32 Rule 7A (3) (b) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) as amended by C. I. 87, when it became clear that the defendants had no intention of filing their witness statements. The plaintiff was accordingly ordered to open its case in proof of its claim.
On the 17th of February, 2014, the plaintiff led evidence in the matter in proof of its claim. In civil cases, the general rule is that the party who in his pleadings or writ raises issues essential to the success of his case assumes the onus of proof. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: "14.