INTERNATIONAL COMMERCIAL BANK vs. ALFA ENTERPRISE LIMITED DEFENDANT [2006]DLCA6728

Date	2006-06-09
Suit No.	SUIT NO. HI/334/04
Citation No.	[2006]DLCA6728

ARYEETEY JA

PIESARE JA

MRS. BROWN J

CHARLES YEBOAH REPRESENTS THE PLAINTIFF/RESPONDENT.

DEFENDANTS/APPELLANTS PRESENT. KOBLA SENANU FOR THE DEFENDANT/APPELLANT PRESENT.

MISS SHILLA DARKWA FOR THE PLAINTIFFS/RESPONDENTS PRESENT

[2006]DLCA6728
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													<main id="main" class="content" style="min-height: 60rem" >INTERNATIONAL COMMERCIAL
BANK<o:p></o:p>{PLAINTIFF/RESPONDENT}<o:p></o:p>vs.<o:p></o:p>ALFA ENTERPRISE LIMITED
DEFENDANT<o:p></o:p>{APPELLANTS}<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO. HI/334/04&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9TH JUNE, 2006<o:p></o:p>

MISS
SHILLA DARKWA FOR THE PLAINTIFFS/RESPONDENTS PRESENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>PIESARE, JA <o:p></o:p>This
is an appeal, brought by the defendants appellants against two Rulings of the
trial High Court, dated 7th November, 2002, and 17th July, 2003
respectively.&nbsp; The Ruling dated 7th
November, 2002, granted an order for judicial sale of some mortgaged
properties.&nbsp; The second Ruling dated 17th
July, 2003, granted an order for a Reserved Price. <o:p></o:p>The
appellants' grounds of appeal filed against the Ruling of 7th November, 2002
are: <o:p></o:p>(a)
That the ruling/decision is against the weight of evidence on record. <o:p></o:p>(b)
That the trial judge, with all due respect, erred in law when he ruled that the
objection raised by the defendants' counsel that the plaintiff ought to seek
the relief of judicial sale of the defendant's mortgaged property under the
Mortgages Decree, 1972 (N.R.C.D. 96) by originating summons was not timeous. <o:p></o:p>(c)
That the trial judge, with all due respect, erred in law when he granted the
order for judicial sale of the defendants' property on 7/11/02 given the
belated application by the plaintiff, by his Motion on Notice for Judicial Sale
of Mortgaged Property filed on 24/7/02, when the plaintiff abandoned the
earlier summary judgment granted to it by the Fast Track High Court for the
liquidated sum of ¢1.24 billion as far back as 6/12/01. <o:p></o:p>(d)
That, with the abandonment by the plaintiff of the summary judgment of 6/12/01
and opting for judicial sale of defendants' mortgaged property under N.R.C.D.
96, the plaintiff took an entirely new step for a relief that the plaintiff
could only pursue by originating summons, as clearly borne out by case law, and
that the refusal of the learned judge to order the plaintiff is, with all due
respect, an error of law. <o:p></o:p>(e)
Further grounds of appeal to be filed upon the receipt of the record of
proceedings. <o:p></o:p>It
is regrettable to note, that grounds (c) and (d) appear to be so loosely
worded, confused, and incoherent.&nbsp; The
best I can do in the circumstances, is to look at the Statement of case filed on
behalf of the appellants, to see what sense appears therein, discernible. The
appellants filed two grounds of appeal against the second Ruling dated 17th
July, 2003, namely: <o:p></o:p>(a)
That the Order/decision is against the weight of evidence on record; and <o:p></o:p>(b)
Further grounds of appeal to be filed upon receipt of the record of
proceedings. <o:p></o:p>No
further grounds of appeal were filed against either Ruling.&nbsp; In the Statement of Case filed on behalf of
the appellants, Counsel argued only grounds (b), (c) and (d) of the grounds of
appeal filed against the Ruling of 7th November, 2002.&nbsp; The grounds of appeal filed against the
Ruling of 17th July, 2003 are therefore hereby struck out as abandoned. <o:p></o:p>The
facts of the case, briefly put, show that sometime in February 1999, the
plaintiff/respondent Bank granted to the 1st defendant/appellant, a loan and an
overdraft facility amounting to a total of ¢1,172,450,000 which was guaranteed
by the 2nd and 3rd defendant/appellants.&nbsp;
The 2nd defendant/appellant, further mortgaged some properties as
security for the facility granted to the 1st defendant/appellant.&nbsp; As at 31st July, 2001, the debt outstanding
against the 1st defendant/appellant stood at ¢1,241,957,412.72. <o:p></o:p>Upon
failure by the 1st defendant to repay the outstanding debt, and upon failure of
demand notices on the defendant/appellants, the plaintiff/respondent Bank
issued a Writ of Summons claiming: <o:p></o:p>(1)
Payment of the outstanding debt, <o:p></o:p>(2)
interest on the outstanding debt; and <o:p></o:p>(3)
"In addition to or in the alternative, an order for judicial sale of the
properties used by the Defendants to secure the loan." <o:p></o:p>