2023
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Writing for the Court of Appeal, Margaret Welbourne, J.A. reviewed an appeal from the High Court’s refusal to grant summary judgment in a secured debt recovery case involving Unisecurities Ghana Limited (wound up) and the 2nd Respondent, owner of the mortgaged Asylum Down property. The High Court had earlier granted leave under section 93 of the Corporate Insolvency and Restructuring Act, 2020 (Act 1015) to proceed and realize the security and recognized the Appellant as a secured creditor under the Borrowers and Lenders Act. Although the Appellant pleaded and supported registration of the mortgage at the Collateral Registry, Lands Commission and Registrar of Companies (via an extension order), the trial judge later raised a lack of Lands Commission evidence and dismissed summary judgment. The appellate court held this was error, found no triable issues given admissions and undisputed security, allowed the appeal, entered summary judgment and alternative judicial sale, and awarded costs.
WELBOURNE, J. A
This is an appeal against the ruling of the High Court dated 17th December, 2021. In this appeal the Plaintiff/Appellant will be known as Appellant and the Defendant/Respondent as 1st and 2nd Respondents.
The Background The Plaintiff/Appellant began the suit against Unisecurities Ghana limited and 2nd Defendant/Respondent by issuing a writ of summons and accompanying statement of claim on the 3rd day of February, 2020. Subsequently, the 1st Defendant/Respondent was liquidated and Plaintiff sought leave from the Court below to pursue the action against 1st Defendant/Respondent.
The court granted leave for the action to continue. (See pages 84A to 85D of the record)Whilst the matter was still pending, on 22nd October, 2020, a winding up order was made by the High Court (differently constituted) against 1st Respondent.
Consequently, the Official Liquidator was substituted as 1st Respondent.
Also, an application to proceed with the suit and to realize security, which was filed by Appellant pursuant to Section 93 of the Corporate Insolvency and Restructuring Act, 2020 (Act 1015), was heard and granted by the trial High Court.
The Plaintiff/Appellant then applied for Summary Judgment.
The application was dismissed by the High Court on 17th December, 2021. This appeal was mounted on the basis of the refusal to grant Summary Judgment by the High Court Judge.
The grounds of appeal are as follows: a. The learned trial judge erred in dismissing the application for summary judgment on grounds that there was no evidence of registration of the Mortgage Deed at the Lands Commission.
b. Having ordered Plaintiff/Appellant to address the court on the issue of registration of the mortgaged property, the learned trial judge erred in holding that Plaintiff/Appellant did not seek leave to file a supplementary affidavit in support evidencing the Land Certificate issued by lands Commission in respect of the Mortgaged Property.
c. The learned trial judge failed to appreciate that the relief for Judicial Sale relating to the Mortgaged Property was an alternative relief.
d. The judgment is against the weight of evidence.
e. Additional grounds of appeal may be filed upon the receipt of the record of appeal.
CONSIDERATION Grounds a, b and d will be considered together.
The duty of this court in cases which the Applicant alleges that the judgment is against the weight of evidence, is that an appeal is by way of rehearing, particularly where the Appellant a