FIRST ATLANTIC BANK LTD v. SEFOS & SONS LTD & ANOR

JUDGEMENT

On 10th April, 2014 the Plaintiff instituted the present action against the Defendant herein seeking the following reliefs:

a. The payment of One Hundred and Twenty-One Thousand, Three Hundred and Sixty Ghana Cedis, Twenty Pesewas (GHC121,360.20) being the amount outstanding in respect of the facilities granted to the 1st Defendant.

b. Interest on the said sum upon the terms of the facilities, from 14th March, 2014 till date of final payment.

c. In addition to or in the alternative, an order for judicial sale of 2nd Defendant's property contained in Deed of Mortgage.

d. Costs.

The facts of the case are that on 5th August, 2004 the Plaintiff granted a loan facility of Fifteen Thousand Ghana Cedis (GHC15, 000.00) to the 1st Defendant. The 1st Defendant used property H/NO. PLOT 15 BLOCK 'X', GYINYASE, KUMASI as security for the loan. The said property belongs to the 2nd Defendant. The title deed of the property was lodged with the Plaintiff Bank.

The 2nd Defendant subsequently commenced an action at the Circuit Court on the 26th day of February, 2014 against the Plaintiff and the 1st Defendant herein for, amongst other things, release of his title documents from the Plaintiff bank but same was refused by the Court on the ground that the Plaintiff bank had a lien over the title deed since same had been used as security for 1st Defendant's unpaid debt.

Parties’ Case

The Plaintiff bank states that as at 14th March, 2014, there was an outstanding amount of One Hundred and Twenty-One Thousand, Three Hundred and Sixty Ghana Cedis Twenty Pesewas (GHC121, 360.20) to be paid by the 1st Defendant on the facility which the 1st Defendant had refused to pay despite repeated demands on it to do so.

The defence of the 1st Defendant as stated in its Statement of Defence is basically that the Plaintiff's instant action is caught by the provisions of the Limitations Act, 1972(NRCD 54). Thus, the action is not maintainable, as it is statute barred. It is the case of the 1st Defendant that the Plaintiff should be prevented from instituting this action, as they have intentionally allowed the loan facility to escalate in bad faith. Secondly, the 1st defendant avers that it does not owe any liability to the Plaintiff, as all outstanding debts to the Plaintiff Bank have been fully paid.

The defence of the 2nd Defendant is that he is not a customer of the Plaintiff and that he never took a loan from the Plaintiff. He also insists that he never created a mortgage