2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal from the High Court (Commercial Division), Kumasi, concerns a substantial investment dispute and the propriety of service and summary judgment procedures. The Respondent invested GH¢74,813,470.22 with the 1st Appellant’s Asafo Branch at agreed high interest rates, secured by a guarantee from the 2nd Appellant and mortgages over prime Accra and Tema properties. As at 31 December 2018, the investments had matured, with total value of GH¢89,635,097.79, but the Appellants did not pay. The Appellants defended by disputing the guarantee’s validity, alleging frustration due to the Bank of Ghana’s revocation of UniBank’s licence, and contesting amounts. The High Court granted a blanket substituted service order and later entered summary judgment after serving the motion by substitution. On appeal, the Court of Appeal held that Act 992’s special service regime for companies prevails, the blanket order and substituted service were improper and defective, triable issues existed, and the denial of a hearing breached audi alteram partem. The appellate court set aside both the refusal to set aside and the summary judgment, remitting the case for trial.
DOMAKYAAREH (MRS.), JA:
[1] We have before us, an appeal from the judgment of the High Court (Commercial Division), Kumasi, dated 15th December, 2020. The Plaintiff/Respondent (who will hereinafter be called the Respondent for ease of reference) issued a Writ of Summons accompanied by a Statement of Claim against the Defendants/Appellants (hereinafter called the Appellants) on 19/3/2019 and claimed the following reliefs:
RELIEFS:
A. An order for recovery from the defendants jointly and severally the total sum of GH¢89,635,097.76 being investment undertaken by Plaintiff with the 1st Defendant and guaranteed by the 2nd Defendant which investments have matured as at 31st December, 2018 but Defendants have failed to honour due payment.
B. Interest on the said sum of GH¢89,635,097.76 at the prevailing bank rate from January 2019 until the date of final payment of the total sum by the Defendants,
C. Costs including Solicitor’s fees and other costs occasioned by the instant suit.
D. Any other reliefs that the court may deem just.
OR IN THE ALTERNATIVE:
An Order by this Honourable Court for the judicial sale of the following properties which were mortgaged to the Plaintiff as security by Defendants to secure repayment of the Plaintiff’s investments.
I. A parcel No. 45A, Independence Avenue, Accra.
II. Plot numbers 26 & 27, Asylum Down, Accra.
III. A 0.96 Acres Parcel of land, North Ridge Residential Area, Accra with Plan No. LCS/GAR602A/AC10064
IV. A 0.39 Hectares (0.98 Acres) Parcel of land, North Ridge Residential Area, Accra with Plan No. L.C.S./GAR602A/AC10062
V. A 2.056 Hectares (5.080 Acres) land, situate at Tema Free Zones with Certificate number TDA. 1410.
RESPONDENT’S CASE:
[2] The basis of the above claims by the Respondent are that the Respondent, between January to November 2018, invested various sums of money totaling GH¢74,813,470.22 with the Asafo Branch of the 1st Appellant company at an agreed interest rate of between 31% to 33% for 182 to 365 days. The Respondent averred that The 2nd Appellant company guaranteed the payment of the Respondents’ investment with the 1st Appellant. The Respondent further averred that the total accrued interest on its investment with the 1st Appellant as at 31st December 2018 amounted to GH¢14,821,627.58 making a total investment of GH¢89,635,097.79 as at the said 31st December, 2018. The Respondent further averred that the 1st Appellant wrote to inform it that its investments had matured as at 31st