2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Dordzie JSC for the majority, dismissed an application invoking its supervisory jurisdiction to quash a High Court judgment that ordered judicial sale of a mortgaged property securing a bank guarantee issued to Kwasi Boampong Company Limited by First Atlantic Bank Limited. The Court held the certiorari motion was procedurally incompetent because the applicants failed to attach the impugned judgment as required by Rule 61(1) of C.I. 16 and was also filed far out of time under Rule 62. On the merits, the Court found no breach of audi alteram partem: the bank properly sued the company obligor and Akwasi Amoako, who executed the mortgage under a power of attorney for the late Kwasi Boampong, and the applicants had pursued and abandoned interpleader proceedings. Certiorari, being discretionary, was refused. Kulendi JSC dissented, reasoning that the mortgagor’s estate should have been joined and that lack of notice rendered the High Court’s order a nullity.
DORDZIE (MRS) JSC:-
This is an application supervisory jurisdiction of this court of this court under article 132 of the 1992 Constitution of Ghana and Rule 61 of the Supreme Court Rules 1996 C.I 16. The applicants are praying this court for an order of certiorari to quash the judgment of the High Court, Accra, dated 28th of March 2019, delivered in suit N0. CM/BFS/0638/2017 titled First Atlantic Bank Limited v Kwasi Boampong Company Limited, Akwasi Amoako and Victoria Boampong. Akwasi Amoako (2nd defendant and Victoria Boampong 3rd defendant) are directors of the first defendant company.
The background of the above named suit is that the first defendant company on 20th of May 2016 applied to the interested Party, First Atlantic Bank Limited (the bank) for a facility. The purpose of the facility was for the bank to provide bank guarantee to Guinness Ghana Breweries Limited for payment in respect of stock supplied to the first defendant company. To secure the facility Mr. Kwasi Boampong mortgaged his property Plot N0. 3 3/MKT/A/13, Community 3, Tema to the bank. He did not execute the mortgage deed by himself, but appointed an attorney, one of the directors of the first defendant company Akwasi Amoako to act on his behalf. A copy of the Power of Attorney is exhibited with the interested party’s affidavit as Exhibit FAB5. The contents of the Power of Attorney are as follows:
1. “To use my property located at Plot No.3 3/MKT/A/13, Community 3, Tema (herein referred to as “the House”) and more particularly described in the schedule below to secure a facility (Bank Guarantee in the sum of One Million Ghana Cedis) granted to Kwasi Boampong Company Limited By First Atlantic Bank Limited.
2. To sign as the Mortgagor on my behalf for the legal mortgage documents prepared by the Bank for the use of my property as collateral.
And I undertake to ratify whatever my Attorney shall do under the authority”
Akwasi Amoako did execute the mortgage agreement as an attorney of Kwasi Boampong. The interested party bank on June 13th 20 17 provided the needed guarantee to the tune of one million Ghana cedis (Ghc 1,000,000)
Prior to this Mr. Kwasi Boampong had died; he died on 31st of January 2017. The first defendant company defaulted in paying back the loan. First Atlantic Bank therefore sued Kwasi Boampong Limited, Akwasi Amoako and Victoria Boampong for recovery of the outstanding debt. The reliefs the bank prayed for in the suit are:
a) An order for payment of the s