HERITAGE & LEGACY MICROCREDIT CO. LTD v. FELIX OKOH & ANR
2022
COURT OF APPEAL
GHANA
CORAM
- HENRY A. KWOFIE JA PRESIDING
- P. BRIGHT MENSAH JA
- GEORGE KOOMSON JA
Areas of Law
- Civil Procedure
- Commercial Law
- Banking and Finance Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by P. Bright Mensah JA and concurred in by H.A. Kwofie JA (Presiding) and G. Koomson JA, reviews a High Court (Accra, Commercial Division 3) ruling on a strike-out application. The defendants sought to strike out the plaintiff’s pleadings for disclosing no reasonable cause of action and, alternatively, set aside the writ for non-compliance with Order 59 of CI 47 and related rules. The plaintiff, a licensed financial services company, had advanced multiple loans consolidated into a GHC 2,123,529 facility at 8% per month, secured inter alia by the first defendant’s residence in Regimanuel Estate and other properties, and claimed GHC 85,664,002.36 plus ancillary reliefs. The Court held the claim was a commercial banking transaction under Order 58, not a moneylender or mortgage action, found no evidence the plaintiff was a licensed moneylender, affirmed that affidavit evidence may be used under inherent jurisdiction, and concluded the statement of claim disclosed a reasonable cause of action. The appeal was dismissed, the case remitted, and costs of GHC 7,000 awarded to the plaintiff.
BRIGHT MENSAH JA:
My Lords, the instant appeal is an invitation to us to determine whether the non-compliance by the plaintiff/respondent of Order 59 of the High Court [Civil Procedure] Rules, 2004 [CI 47] the defendants/appellants complained of, renders the suit incurably bad and subject to be dismissed or for disclosing no cause of action, the statement of claim be struck out. The appeal is against the Ruling of the High Court, Accra [Commercial Division 3] delivered 19/02/2021 in respect of an application by the defendants/respondents praying for an order striking out plaintiff/ respondent’s pleadings “for disclosing no reasonable cause of action” or striking out the writ of summons.
In a terse Ruling by the lower court, the learned trial judge had held:
“By court:
On 11th November 2020, the defendants/applicants filed motion on
notice for an order striking out plaintiff’s pleadings for disclosing no
reasonable cause of action pursuant to Order 11 rule 18, Order 59 of
CI 47 and under the inherent jurisdiction of the court or an order setting
aside the writ of summons together with the statement of claim for non-
non-compliance with the Rules of Court [Order 81 rule 2(1); Order 59
rule (3) of CI 47. I ordered parties to file their written submissions which was complied with by both parties and accordingly fixed 12th February 2021 for the Ruling.
However, when I went through the affidavit evidence and the written
submissions of both parties, I realized that the motion filed by the
defendants/applicants was confusing so I asked the applicants to
elect which of the applications they would like the court to give its
Ruling on and the defendants/applicants asked for a week to make
that determination.
Today, Counsel for the defendants/applicants inform the court to
deliver its ruling based on the application they have filed. Having
read the affidavit in support and in opposition to the application and
written submission filed by the parties, the court is of the opinion that
the application filed by the defendants/applicants is both misleading
and confusing especially when the alternative options would lead to
different consequential orders being given. In the circumstance, the
application filed by the defendants/applicants is hereby dismissed….”
See: pp 249-250 of the record of appeal [roa]
The defendants/appellants have launched their attack against the Ruling of the lower court on a umber of grounds contained in a notice of