EVADOX LTD v. SAHEL SAHARA BANK LTD
2018
HIGH COURT
GHANA
CORAM
- ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Banking and Finance Law
- Contract Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
This High Court ruling by Justice Eric K. Baffour addresses an interlocutory injunction application brought by the Defendant/Counter Claimant/Applicant, a bank, to restrain the Respondents from transferring, leasing, selling, or otherwise dealing with nine mortgaged properties that secured loans and a bank guarantee enabling the 1st Respondent to access GH¢15 million from COCOBOD. The Applicant alleged default, repeated restructuring, indebtedness exceeding GH¢5,629,158.11 and a contingent liability of GH¢1,654,283.29 arising from its COCOBOD guarantee. The Respondents, via an affidavit by Ms. Sika Aggrey, asserted an unfettered right to sell subject to statutory redemption and proposed directing sale proceeds to the Applicant; they noted engagement with a reputable estate agency and an offer rejected by the bank. Applying Order 25 Rule 1 and the Mortgages Act (NRCD 96), the court held Clause 4 in the mortgage deeds to be a contrary intention under section 12(1), and with sections 12A and 13, concluded that sales without written consent are void. It granted an injunction restraining any disposition absent the bank’s written consent, limited to liquidating the debt.
RULING
Defendant/Counter Claimant/Applicant has brought this application for orders in nature of interlocutory injunction to restrain the Respondents/Defendants to the counter claim and their agents, assigns, and persons claiming through them from transferring, leasing, selling, encumbering, disposing or otherwise dealing with nine properties that were used by the 1st Respondent to secure loans granted by the Applicant as well the use of some of some of the properties by 1st Respondent as securities for Applicant’s issuance of Bank guarantee to enable 1st Respondent access a Fifteen Million Cedis from COCOBOD as seed fund.
To Applicant due to the nature of some of the documents evidencing ownership which were incomplete the 1st Respondent undertook to regularize the land documents after the disbursement of the credit facilities to enable Applicant proceed to perfect the mortgages. Applicant contend that 1st Respondent has defaulted in the repayment of the loans and same has been restructured several times. That Respondents are indebted to Applicant an amount in excess of Gh¢5,629,158.11 as well as being faced with a contingency liability of Gh¢1,654,283.29 which represent the amount that 1st Respondent owe COCOBOD and which Applicant issued a guarantee.
To Applicant notwithstanding the mortgage of the nine properties, 1st Respondent has attempted and is attempting to sell the mortgaged properties in contravention of the mortgaged agreements and even had to caution the Lands Commission about any such conduct on the part of the Respondents and hence its application for order from the court to restrain the Respondents. Respondents have resisted the application through an affidavit in opposition filed by Ms Sika Aggrey. They claim that after the disbursement of the loans by Applicant to the 1st Respondent matters became difficult which affected the repayments which matters are known to the Applicant. She then states in paragraph 7 of the affidavit in opposition as follows:
“That I verily believe that the Respondents have an unfettered right in law (irrespective of having mortgaged them) to put up their properties for sale subject to their statutory right of redemption and upon receiving offers from prospective buyers obtain the consent of Applicant to the sale of the said properties where the sale proceeds will be made directly to the Applicant against a discharge of the mortgages on the properties”.
She then claim that with the mortgaged properties regis