N.D.K FINANCIAL SERVICES LTD v. ANDRE KWAME GYENFIE
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR
Areas of Law
- Contract Law
- Banking and Finance Law
- Property and Real Estate Law
- Evidence Law
- Civil Procedure
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
NDK Financial Services sued to recover outstanding debts under three short-term loan facilities extended to the Defendant, totaling GHC 5,238,403.46 at the time of filing, with 4.25% monthly interest and a 2.5% default penalty. The facilities financed the acquisition and documentation of property at Airport Hills and registration of interests for property at Spintex Road, supported by a mortgage over No. 510, Airport Hills, and a power of attorney empowering NDK to hold title documents. The Defendant argued that repayment was contingent on the sale of Plot 55, Spintex Road and claimed frustration due to delays in documentation. The court found the Defendant’s indebtedness proven, rejected the frustration defense because hardship and delay did not alter fundamental obligations, and held that the source-of-repayment clause did not create a condition precedent. While confirming NDK’s entitlement to monetary reliefs, the court denied judicial sale because the mortgage deed was unstamped and unregistered, and awarded costs at 8% of the claim. The Defendant’s counterclaim was dismissed.
JUDGMENT
Plaintiff in a writ issued claims against the Defendant the following endorsement:
The sum of GHC 5,238,403.46 (Five Million Two Hundred and Thirty Eight Thousand Four Hundred and Three Ghana Cedi Nineteen Pesewas) being the outstanding debt in respect of the loans granted to the Defendant.
Interest at the monthly rate of 4.25 % per month from the 1st August 2015 till date of final payment.
The sum of GHC 130,960.08 (One Hundred and Thirty Thousand Nine Hundred and Sixty Ghana Cedis Eight Pesewas).
Cost and Attorney’s fees being 10% of the sum owed.
Judicial sale of the Defendant’s landed properties which are mortgaged and which properties are described in paragraphs 10 and 11 of the Statement of Claim
PLAINTIFF’S CASE
The basis for the demand of the reliefs endorsed on the writ is captured in the statement of claim that accompanied the writ. Plaintiff avers that the Defendant applied to it for a credit facility of US$800,000.00 to enable Defendant acquire a residential property at Airport Hills. Plaintiff states that it approved the application and granted to the Defendant an amount of GHC2,320,000 (Two Million Three Hundred And Twenty Thousand Ghana Cedi) being the Cedi equivalent of US$800,000 at the then prevailing rate of GHC2.90 to a dollar.
Plaintiff further avers that Defendant applied for an additional credit facility of GHC50,000 (Fifty Thousand Ghana Cedi) to enable the Defendant register his interest in a commercial property situate at Spintex Road. Plaintiff states that it approved the loan by granting the additional facility of GHC 50,000 to the Defendant.
Plaintiff further says that by a letter dated the 25th September, 2014 Defendant applied, for a third time, for an additional loan which the Plaintiff approved, and that pursuant to the approval the Plaintiff granted the amount of Ghc 660,000 (Six Hundred and Sixty Thousand Ghana Cedi).
Plaintiff asserts that all the loans were granted at a monthly interest rate of 4.25% and were to be repaid within three months of the grant of each facility. Plaintiff says that the loan agreements under which the loans were granted contained a term that upon default the Defendant would pay a flat penalty rate of 2.5% on the balance outstanding in addition to the agreed interest.
Plaintiff avers that the Defendant mortgaged two landed properties to it to secure the repayment of the loan; that by a letter dated the 25th day of April, 2014 Defendant executed a mortgage over No.510, Buena