GHANA COMMERCIAL BANK LTD. v. KOFI AGYEKUM & ANOTHER
2015
COURT OF APPEAL
GHANA
CORAM
- P. K. GYAESAYOR, J.A. (PRESIDING)
- A. M. A. DORDZIE, J.A.
- L. L. MENSAH, J.A
Areas of Law
- Civil Procedure
- Commercial Law
- Property and Real Estate Law
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Ghana Commercial Bank Ltd granted a loan to David Duah Boateng, secured by properties mortgaged by the respondents. After Boateng defaulted, the bank obtained a judgment but he failed to pay. The bank sued the respondents for recovery and judicial sale of their properties. The High Court struck out the suit for abuse of court process. On appeal, the Court of Appeal held that the judgment was against Boateng alone, the suit against the respondents was maintainable, and the trial judge erred in striking out the suit, thus restoring the suit and awarding costs to the bank.
J U D G M E N T
A. M. DORDZIE JA:-
FACTS:
The appellant herein, Ghana Commercial Bank Ltd granted a loan facility to one David Duah Boateng trading as Sankofa Motors. To secure the facility, the respondents herein as mortgagors charged their properties to the bank. David Duah Boateng defaulted in the payment of the loan facility; in a suit numbered E2/46/06 the appellant obtained judgment from the High court Tema to recover the loan amount plus interest. David Duah Boateng failed to pay the judgment debt. The appellant therefore instituted the action culminating in this appeal in the Commercial Division of the High Court, Accra against the respondents as mortgagors for the following reliefs:
1. Recovery of the sum of GH¢458,460.20 owed by the defendants to the plaintiff as at 31st December 2011 as mortgagors of David Duah Boateng.
2. Interest on the Ghc¢458,460.20 compounded at the prevailing rate determined by the plaintiff from 31st December 2011 till the date of final payment.
3. An order for judicial sale of the defendants’ properties described in the statement of claim in recovery of the amounts specified in reliefs 1 & 2.
The 2nd defendant entered a conditional appearance and subsequently applied for her name to be struck out from the suit on grounds that she was wrongfully joined to the suit; a similar suit on the same subject matter brought against her by the plaintiff had been dismissed, as such the plaintiff was estopped from commencing the present action against her; the action is an abuse of the court’s process.
In determining the 2nd defendant/respondent’s application, the High Court struck out the entire suit on the ground that it is a gross and patent abuse of the court process.
The appellants aggrieved by the ruling brought this appeal praying this court to reverse the decision of the trial High Court.
GROUNDS OF APPEAL The appellant filed four grounds of appeal which are:
1. The trial judge erred in his finding that the endorsement on the writ does not indicate that the action is to enforce the judgment in suit N0 E2/46/06 titled Ghana Commercial Bank Ltd v David Duah Boateng trading as Sankofa Motors & 2others against the defendant/respondents
2. The trial judge failed to appreciate that the setting aside of the judgment in suit N0 E2/46/06 against the 1st defendant/ respondent by the High Court, Tema on the ground of non service of the writ on him amounted to no action having been taken against him.
3. The finding that