FIDELITY BANK LTD v. BENTUSI GH LTD & others
2024
HIGH COURT
GHANA
CORAM
- JUSTICE SHEILA MINTA
Areas of Law
- Civil Procedure
- Evidence Law
- Contract Law
- Property and Real Estate Law
2024
HIGH COURT
GHANA
CORAM
AI Generated Summary
Plaintiff brought action to recover an overdraft balance and enforce a mortgage. Defendants disputed claims due to lack of proper consent and alleged fraud in mortgage documentation. The court found Plaintiff didnt meet the burden of proving the 3rd Defendants directorship or the 4th Defendants valid consent on the mortgage deed. However, Plaintiff was granted recovery from the 1st and 2nd Defendants. Costs were awarded against both parties.
FACTS
The Plaintiff issued an Amended Writ of Summons against the Defendants jointly and severally on 16th February 2018 for the following reliefs:-
1. An order for the recovery of the sum of One Million Eighty-Seven Thousand Six Hundred and Thirteen Ghana Cedis Seventy-Three Pesewas (GH¢1,087,613.73) being balance outstanding on the restructured Overdraft Facility as at February 21, 2017.
2. Interest on the said sum from February 21, 2017 at the agreed rate of interest per annum calculated at the close of each day at the end of every month until date of final payment.
3. Cost including lawyer’s fees, administrative and statutory expenses assessed at 10% of the aggregate sum due and payable under the facility.
And/or
4. Judicial sale of the mortgaged property, which is Plot No. Block C, Asokwa Industrial Area, Kumasi which was used as security for the facility taken.
5. Any further order(s) this Honourable Court may deem fit.
Interestingly, a Notice of Conditional Appearance was filed by Benjamin Ampoma- Boateng Esq. on 16th February, 2018 and a Statement of Defence was also filed on 20th March, 2018 purporting to be the documents of the “Defendants”. In that Statement of Defence an admission was made that the 1st Defendant owes the Plaintiff some amount of money but denies that the Plaintiff is entitled to its reliefs on the endorsement to the Writ. In that Statement of Defence it is noted that the 1st and 2nd Defendants denied the fact that the 4th Defendant used her property to secure the mortgage and also averred in paragraph 6 that “the said property was used without the express consent of the owner.” There is also on file an Entry of Appearance filed on 4th October, 2018 by Noah Asomany Esq. for 3rd Defendant and a Statement of Defence for the 3rd Defendant was filed on 16th November, 2018. Counsel for the 3rd Defendant again filed a “Notice of Change of Lawyer” to represent 4th Defendant and filed a Statement of Defence of 4th Defendant on 20th May, 2021 in which it is alleged that the mortgage document between the Plaintiff and the 1st Defendant was fraudulently procured. At Case Management Conference the 1st and 2nd Defendant and Counsel failed to appear even when given several opportunities to do so and in accordance with rules of the Commercial Court, the 1st and 2nd Defendants’ Statement of Defence was struck out for failure to comply with the Case Management Orders of the Court on 23rd February, 2022.
Both Counsel for the Plainti