HFC BANK (GH) LIMITED vs PAUL KUMAH & ANOTHER
2018
HIGH COURT
GHANA
CORAM
- JUSTICE GEORGE BUADI J.
Areas of Law
- Banking and Finance Law
- Civil Procedure
- Property and Real Estate Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The applicant bank applied for a warrant to recover possession of a property to secure repayment of a loan, which the respondents opposed. The court found that the application was based on inapplicable laws, as the relevant laws were enacted after the loan agreement. The respondents' denials and claims of repayment required full hearing, not provided by the chosen mode of trial. The court dismissed the application and awarded costs to the respondents.
1. 0 Introduction 1. 1 Pursuant to s. 13 and s. 24 of the Home Mortgage Finance Act, 2008(Act 770); and s. 34 of the Borrowers and Lenders Act, 2008 (Act 773), the applicant bank brought this application praying for an order for a warrant to recover possession of a 7 bedroom three-storey detached house, Plot No. 12, Soldier Line, Asofa, North Ofankor, Accra.
The said property belongs to respondents, who used same to secure repayment of a loan facility the applicant bank granted to 1st respondent.
1. 2 According to applicant, the facility had ran into default, and that same had not been liquidated despite repeated demand notices.
The application is supported by affidavit and a supplementary one that was filed on 22 June 2018. Respondents oppose the application on the back of an affidavit dated 30 May, and a supplementary affidavit dated 3 July 2018. 1. 3 I need to say at the outset that, this is not an ordinary “application in a pending proceedings” as provided in Order 19 Rule 1 of the Rules of Court1, but rather an originating process brought pursuant first to statute2 and then second the Rules of Court - Sub-rule 2 of Order 19 Rule 1. id.
Being so, and as dictated by practice, the title of the application must have reflected the originating nature of the matter by stating first ‘In the matter of’ followed by the enactment that grounds the application, then the prayer or relief that is being sought, before stating the parties involved in the matter.
2. 0 The facts, depositions and lawyers’ arguments 2. 1 In their joint affidavit, respondents do not deny applicant’s claim to have granted them a loan facility of USD$120, 0003 as evident by applicant’s Exhibit A. Neither do they deny due execution of the mortgage deed by which they 1 High Court (Civil Procedure) Rules, 2005 (C. I. 47)2 As referred to above, that is, s. 13 and s. 24 of the Home Mortgage Finance Act, 2008 (Act 770); and s. 34 of the Borrowers and Lenders Act, 2008 (Act 773). 3 One Hundred and Twenty Thousand United States Dollars secured by mortgage repayment of the facility with the property described.
Respondents acknowledge receipt of demand notices – Exhibit C series4, including ‘notice of recovery of possession’ dated 19 Sept.
2017 marked as Exhibit D. They deny however any default or failure on their part to liquidate arrears on the facility.
Indeed, respondents not only deny claims of default by the applicant, they also dispute the sum of GH¢407, 661. 60 that applicant claims