National Investment Bank Limited v. Tobbana Ghana Ltd and 3 Ors

1. 0 Background and plaintiff’s case The plaintiff is a commercial bank carrying on business throughout Ghana.

1st defendant is a limited liability company in Ghana, whilst 2nd, 3rd and 4th defendants are alleged to have mortgaged a property and further guaranteed repayment of loan facility plaintiff claims to have granted to 1st defendant company.

1. 1 Plaintiff’s case Plaintiff’s claim is that, pursuant to a loan agreement it executed with 1st defendant on 13 April 2007, the bank granted and disbursed Two Billion Eight Hundred Million Cedis(now GH¢280, 000. 00) as an overdraft facility to 1st defendant, the purpose of which was to enable the company export raw cashew to the United States of America (US)repayable within 12 months from 13 April 2007 at an interest rate of 24%, and a penal interest of 27% per annum in default.

The facility, according to plaintiff was agreed to be secured first by specific charge on the company’s present and future immovable properties wherever situated and whatever fixtures thereon including buildings, fixed plant, and machinery.

The loan facility was further secured by a floating charge on the company’s movable properties, and all other assets.

As further security, 2nd defendant mortgaged his property (Plot No. 156, Property No 13, Nii Kwakranya Close, East Legon) Accra to the bank, and further to all these, 2nd, 3rd and 4th defendants executed a deed of guarantee dated 13 April, 2007 as further or additional securities for repayment of the loan.

Despite having enjoyed the full facility, the bank claims that 1st defendant has failed to honour its obligations under the loan agreement, in spite of formal notices to 2nd, 3rd and 4th defendants to pay up or ensure payment of the loan.

The bank says that its rights to recover full amount outstanding on the facility and also to enforce same by judicial sale of the mortgaged properties has fully accrued to proceed against 2nd, 3rd, and 4th defendants as guarantors jointly and severally, hence this action against defendants jointly and severally for the following reliefs: (i) Payment of the sum of One Million One Hundred and Eighty-Nine Thousand(GH¢1, 189, 177. 47) being the principal and interest thereon remaining unpaid as at 7th February, 2012 in respect of a revolving overdraft facility in the sum of GH¢2, 800, 00. 00 granted to the 1st defendant by the plaintiff bank but which the 1st defendant has failed or refused to pay to this day.

ii) Interest on the said GH¢1,