UNIVERSAL MERCHANT BANK LTD. v. JF-K COMPANY LTD. & ORS.
2016
COURT OF APPEAL
GHANA
CORAM
- S.E. KANYOKE J.A (PRESIDING)
- IRENE CHARITY LARBI (MRS) J.A
- MARGARET WELBOURNE (MRS) J.A
Areas of Law
- Civil Procedure
- Commercial Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Merchant Bank Ghana Ltd sued Defendants for debt recovery, leading to a consent judgment. Defendants defaulted prompting enforcement actions. Due to Plaintiff's name change, Universal Merchant Bank was substituted. Defendants appealed this substitution and reserved price application, arguing it was premature. The Court dismissed the appeal, affirming High Court's decision, and stated Universal Merchant Bank's substitution was valid and Defendants suffered no injustice.
IRENE CHARITY LARBI J.A.
(1) On 19th May, 2010 the Plaintiff in this case, Merchant Bank Ghana Limited commenced an action against the Defendants claiming for the following reliefs:-
“a) An order for the recovery of the sum of (Gh₵4,345,270.54)
being balance due as at April 30, 2010 an account of credit facilities extended to the 1st Defendant company on 15th January, 2009 repayment of which was guaranteed by 2nd and 3rd Defendant but settlements of which Defendants have failed to make good several demand notices notwithstanding.
b) Interest on the said sum at the rate of 32% per annum
calculated daily on the outstanding debt balances at the close of each day and applied monthly from 1st May 2010 up and inclusive of date of final payment.
c) Costs including lawyer’s fees assessed at 10% of the aggregate
sum due and payable under the facility.
(2) The parties entered into negotiations and as a result executed Terms of Settlement which was filed at the Registry of the High Court, Commercial Division on 19th March, 2013.
By consent of the parties the High Court adopted the Terms of Settlement as consent judgment on 19th March, 2013.
(3) On 11th April, 2013 the Plaintiff filed Entry of Judgment after Trial and duly had the Defendants served with same.
However, the Defendants failed to comply with the terms of the consent judgment.
The Plaintiff therefore filed a Writ of Fifa on 26the February, 2015 and proceeded to attach Residential/ Property House No.1, New Link Road East-Legon Accra and uncompleted Commercial Property House No.C.21 A/L, New Town Road Kokomlemle, Kwame Nkrumah Circle, Accra for auction sale to satisfy the judgment debt.
(4) Meanwhile, on 4th April, 2014 by a special resolution and with the approval of the Registrar of Companies, the name of the Plaintiff Bank was changed to Universal Merchant Bank Limited. On 8th May, 2015 the Plaintiff filed a Motion Ex-Parte for leave to substitute Universal Merchant Bank for the first-named party. The application was brought under Order 4 Rule 6 Sub-rules 2 and 3 of C.I.47, 2004 as amended.
(5) On 13th May 2015, the High Court granted the application. The operative part of the order reads:-
“It is hereby ordered that the Plaintiff herein Merchant Bank Ghana Ltd. be substituted with UNIVERSAL MERCHANT BANK LTD. Pursuant Notices to amend”.
(6) The Motion Ex-Parte was filed at 9.08a.m. On the same day i.e. 8th May, 2015 at 9.20am, Universal Merchant Bank filed a Motion on Notice for an order