NTHC LIMITED VS B & P GROUP LIMITED & 2 ORS.
2019
HIGH COURT
GHANA
CORAM
- HER LADYSHIP MRS. ANGELINA MENSAH- HOMIAH J.
Areas of Law
- Banking and Finance Law
- Contract Law
- Evidence Law
- Civil Procedure
- Commercial Law
- Property and Real Estate Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Her Ladyship Mrs. Angelina Mensah-Homiah J., sitting at the Ghana High Court (Commercial Division), decided a long-delayed debt recovery action brought by NTHC Limited against a borrowing company and its two personal guarantors. In 2011, NTHC extended two asset-backed commercial paper facilities secured by heavy equipment, vehicles, and land; the borrower defaulted and repaid only GH¢898,000. After defendants repeatedly failed to comply with case management directions, their defence was struck out and the trial proceeded solely on the plaintiff’s evidence. The Court found the loan agreements and exhibits proved the facilities and defaults, but disallowed unilateral interest rate increases and penalty charges for non-compliance with Bank of Ghana disclosure and transparency rules. It awarded recovery of GH¢1,509,508.93 and GH¢3,242,635.32, applying 24% simple interest up to maturity and the prevailing bank lending rate thereafter, held the guarantors liable, declined immediate judicial sale for lack of mortgage or assignment documentation, and awarded costs of GH¢50,000.
At first sight, it seemed quite strange to me, that a simple debt recovery action has been pending at the Commercial Court since the year 2014, but upon a perusal of the processes, I gathered that the parties themselves have unreasonably caused the delay.
The suit was even struck out on two (2) occasions for want of prosecution! Such delays go against the mission and vision of the Commercial Court, and should be avoided at all cost. What has kept the Plaintiff in Court all these years? From its Writ of Summons and Statement of Claim filed on 21st March 2014, the reliefs sought jointly and severally against the Defendants are: i. An amount of Seven Million, Five Hundred & Forty-Three Thousand, Three Hundred &Forty-Three Thousand, Three Hundred and Four Ghana Cedis, Sixty-Two Pesewas(GH₵7, 543, 340. 62) same being the balance outstanding on an asset backed commercial paper facility granted 1st Defendant and secured by 2nd and 3rd Defendants.
Interest on the said amount of GH₵7, 543, 340. 62 at the prevailing bank lending rate of interest from 15/03/2014 continuing till date of final payment.
AND OR IN THE ALTERNATIVE iii.
An order for the judicial sale of Caterpillar D&R Bulldozer with Serial No. 9EM05484, caterpillar 325DL Excavator with Serial No. LAL00444 & Caterpillar D 10R Track Type Tractor with Serial No. 2YD02490 assigned by the Defendant to the Plaintiff to secure repayment of the facility.
An order for judicial sale of all those parcels of land known as Plot Nos.
19-30, 35-84, 95&96, situate at Dixcove Hill, Etuakrom, in the Shama Ahanta East District, measuring and/or containing an approximate area of 18. 31 acres, used as mortgage for repayment of the facility granted 1st Defendant.
v. An order for judicial sale of the fleet of vehicles comprising one (1) Toyota Land Cruiser V8, one (1) Toyota land Cruiser Prado, fifteen (15) Toyota Pick-Ups & five (5) Man Tipper Trucks held over the debenture created in Plaintiff’s favour to secure repayment of the facility granted 1st Defendant.
After years of delay, the Plaintiff filed a “Notice of Intention to Proceed” on 10th October 2018, pursuant to Order 37 Rule 3 of the High Court (Civil procedure) Rules 2004, C. I 47. Thereafter, the Plaintiff filed its Witness Statement, and with leave of the Court, it filed another Witness Statement on 17th April, 2019 to replace the earlier one.
In granting leave to the Plaintiff to amend its Witness Statement on 11th April, 2019, the Court made these orders