THE REPUBLIC vs THE HIGH COURT, ACCRA (COMMERCIAL COURT 9) & ORS

KULENDI JSC:

INTRODUCTION:

1. This is an application invoking the Supervisory jurisdiction of this Court under Article 132 of the 1992 Constitution and Rule 61 of the Supreme Court Rules, 1996 (C.I. 16). The Applicant is specifically praying for an order of certiorari to remove into this Court for the purpose of quashing an interlocutory judgment entered by the High Court (Commercial Division 9) Accra, dated 14th December 2023 on grounds of the lack of jurisdiction and a fundamental errors of law.

2. The origins of the dispute, as may be inferred from Applicant’s affidavit in support and the various exhibits attached thereto, lies in a credit transaction between the Applicant as the Plaintiff in the High Court and the 1st Interested Party as the 1st Defendant at the High Court. The Applicant initiated the action by Writ of Summons against the Interested Parties on 23rd December 2022, seeking a recovery of an outstanding debt of Six Million Four Hundred and Forty-Six Thousand Five Hundred and Seventy-one Ghana Cedis and Sixty Three pesewas (GHS 6,446,571.63), the judicial sale of a mortgaged property, enforcement of a personal guarantee by the 2nd Interested Party and ancillary reliefs.

3. The Interested Parties entered appearance and filed a defence and counterclaim on 21st June, 2023, asserting, inter alia that the contract was frustrated and that the credit arrangement was null and void under the Borrowers and Lenders Act, 2020 (Act 1052) due to the absence of a pre-lending disclosure agreement. Under their Counterclaim, the Interested Parties sought the following reliefs:

a) A declaration that the Plaintiff's acts and conduct in all the circumstances of its referenced Credit transaction with the 1st Defendant amount to breach of Contract.

b) A Declaration that the Plaintiff's referenced Credit transaction with the 1st Defendant was frustrated by force majeure and not enforceable in law and equity.

c) An order that the Plaintiff failed to execute a pre lending disclosure Agreement before concluding the Credit transaction with the 1st Defendant thereby rendering the said Credit transaction null and void.

d) An order cancelling or setting aside the entire transaction under the Borrowers and Lenders Act, 2020 (Act 1052).

*e) Alternatively, an order that an account be taken between the Plaintiff and the 1st Defendant and further that the Plaintiff do pay to the 1st Defendant what sums, as on the taking of the account may be found to