HFC BANK (GHANA) LTD v. JACOB ABEKA

JUDGMENT

YEBOAH, JSC:-

The facts of this case appear not to be controverted by the parties. Briefly, the defendant/respondent/appellant (hereinafter referred to as the appellant) was at the material time to this action a customer of the plaintiff/appellant/respondent (who for sake of brevity shall be referred to as the respondent.) Between June and August of 2008, the Respondent allowed the appellant to overdraw his accounts to the tune of Gh₵200,000 to enable him construct a warehouse. The parties herein did not execute any formal agreement but the appellant deposited the title deeds of his property known as plot No. 31 Block ADB Parakuo Estate, Adiembra, Kumasi as security for the credit facility so granted.

The appellant, however, failed to pay off the debit balance on his account. The respondent thereafter commenced this action per his attorney at the High Court, (Commercial Division) Kumasi, for the following reliefs:

a. Recovery of the sum of one Hundred and Thirty-one Thousand, one hundred and Forty-Nine Ghana Cedis, fourteen Ghana pesewas (Gh₵131, 149.14) inclusive of interest being outstanding balance of an overdraft facility extended to defendant by plaintiff.

b. Interest at the prevailing bank rate from 1st May 2011 till date of final payment.

c. Penal interest of 10% per annum from 1st May, 2011 till date of final payment.

d. And or in the alternative

Judicial sale of property situate at plot No. 31 block ADB, Parakuo Estate, Adiembra, Kumasi, in satisfaction of the facility.”

The appellant traversed most of the allegations and contended that he had originally applied to the respondent bank for a loan of Gh₵300,000 to be repaid within four years. On the 18th of June, 2008 the respondent granted the appellant an initial Gh₵100,000.00 which was converted into an overdraft facility instead of a loan facility. On the 7th and 12th of August 2008 the appellant was given the further sums of Gh₵80,000,00 and Gh₵20,000 respectively. Before the last amount of Gh₵100,000 was released, the respondent informed the appellant that due to a change in government the final instalment could not be advanced. The appellant further alleged that failure on the part of the respondent to give him the entire Gh₵300,000,00 loan led to his inability to complete the building of the warehouse within time and therefore resulting in the collapse of his business and the inability to pay the debt. Based on the above allegations the appellant contended that the conduct