MERCHANT BANK GHANA LTD & 2ORs v. AFROTROPIC COCOA PROCESSING

This ruling is in respect of an application by Afrotropic Cocoa Processing Company Limited praying this court for an order for stay of execution of various judgments obtained by three banks namely, Merchant Bank (Ghana) Limited in Suit No. AB157/2010; Barclays Bank (Ghana) Limited in Suit No. AB92/2011; and Stanbic Bank (Ghana) Limited in Suit No. AB111/2011.

Before examining the merits or otherwise of this application I would state the relevant antecedents of these judgments to put the application in context.

The Applicant herein applied for and was granted various financial facilities by the three banks mentioned above and Intercontinental Bank (Ghana) Limited at various times. As security for the said facilities the Applicant executed a Pari Passu Mortgage Debenture on 10th November, 2009 in favour of the four banks. The Applicant subsequently defaulted in paying the facilities and the three banks mentioned above instituted separate court actions against it and obtained judgments. The various judgment debts are as follows:-

(a) Merchant Bank - US$1,537,86.01

(b) Barclays Bank - US$6,402,135.39

(C) Stanbic Bank - US$6,706,236.18

In addition interest continues to run on these judgment – debts. Intercontinental Bank facility also remains unpaid.

All the above creditors have thus taken steps to enforce the mortgage deed as a valuer was appointed who valued the properties mortgaged to defray if not all but part of the facilities. This prompted the Applicant to bring the instant application.

The only ground in support of the application is that the Applicant is a going concern and if the banks levy execution on the assets of the Applicant it will suffer irreparable damages as it will lead to the total collapse of the Company and the layoff of about 400 workers.

The banks oppose the application stating that the Applicant’s application if granted would deny the banks their rights to recover their facilities.

The banks did not grant the facilities to the Applicant as “Father Christmas” gifts. That is the more reason why they got the facilities secured by way of the mortgage debenture. The facilities granted the Applicant are deposits by the banks’ customers who would be expecting the refund of their money and profits. So the customers would have more legitimate claims for their money and if deprived would suffer more hardship than the Applicant and its workers.

For the above reasons I am unable to exercise my discretion in favour of the Applicant