NDK FINANCIAL SERVICES LIMITED vs. KORASE LIMITED, DR. KWASI AUGUSTINE ADDAI AND SAMUEL KWADWO YEBOAH [2016]DLHC11582

NDK FINANCIAL SERVICES LIMITED vs. KORASE LIMITED, DR. KWASI AUGUSTINE ADDAI AN... [2016]DLHC11582

Date	2016-06-22
Suit No.	SUIT NO. BFS/307/2014
Citation No.	[2016]DLHC11582

HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)

AKOSUA GYAMFI DUAMROH FOR PLAINTIFF

NO LEGAL REPRESENTATION FOR THE DEFENDANTS

[2016]DLHC11582
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													<main id="main" class="content" style="min-height: 60rem" >NDK FINANCIAL SERVICES LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>KORASE LIMITED, DR. KWASI AUGUSTINE ADDAI AND SAMUEL KWADWO
YEBOAH<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<o:p></o:p>AKOSUA GYAMFI DUAMROH FOR PLAINTIFF<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;tab-stops:97.95pt;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">NO LEGAL REPRESENTATION FOR
THE DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH
(MRS.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGEMENT<o:p></o:p>

</div>&nbsp;The Plaintiff is a body
corporate registered under the laws of Ghana and engaged in the business of
providing loans and general financial and investment services. The 1st
Defendant is a Limited Liability Company registered under the laws of Ghana and
operates as a firm of civil engineers and building contractors. The 2nd and the
3rd Defendants are directors of the 1st Defendant Company and are said to have
acted in a joint and several capacity as guarantors for the repayment of a loan
advanced to the 1st Defendant by the Plaintiff.<o:p></o:p>The Plaintiff avers that by
a letter dated the 28th of December, 2012, the 1st Defendant applied to
Plaintiff for a loan facility of One Hundred and Sixty Thousand Ghana Cedis
(GH¢160,000.00) to enable the 1st Defendant undertake a contract it had been
awarded by the Department of Feeder Roads to construct a bridge (hereafter
referred to as the Bridge Project) at Kwahu Bepong in the Eastern Region.&nbsp; The said facility was approved by Plaintiff
on 18th day of January, 2013 at an interest rate of five percent (5%) for a
period of six (6) months commencing on the date of approval and expiring on the
18th day of July, 2013.&nbsp; The stipulated
interest rate was five percent (5%) per month, compound to be calculated on a
thirty (30) day per month basis, and payable monthly in arrears.&nbsp; The facility was secured by a Deed of
Mortgage in respect of landed property situate at Achimota, executed by the 2nd
Defendant in favour of Plaintiff&nbsp; and
also with a Deed of&nbsp; Guarantee executed
by the 2nd and 3rd Defendants in their joint and several capacities as
directors of the 1st Defendant Company.&nbsp;
The 1st Defendant, again by a letter dated the 19th of June, 2013
applied for an additional facility of Thirty Thousand Ghana Cedis (GH¢30,
000.00) to be utilized for the same&nbsp;
Bridge Project.&nbsp; An amount of
Twenty Five Thousand Ghana Cedis (GH¢25,000.00) was approved by Plaintiff in
respect of the additional facility for a period of three (3) months commencing
July 2, 2013 and expiring on October 2, 2013 at an interest rate of four and
half percent (4.5%) per month compound, calculated on a thirty (30) day per
month basis and payable in arrears.&nbsp; This
additional facility was equally secured with the Mortgage Deed and Deed of
Personal Guarantee used in securing the initial loan facility.&nbsp; It is the Plaintiff’s case that the
Defendants in spite of persistent demands on them to make good their
indebtedness to Plaintiff are in default of their repayment obligations such
that their indebtedness to the Plaintiff as at September, 2014 stood at Four
Hundred and Sixty-Seven Thousand, Five Hundred Ghana Cedis and Eighty Ghana
Pesewas (GH¢467,500.80) on which interest continues to accrue.&nbsp; It is on the basis of the foregoing that the
Plaintiff by its writ filed on the 12th November, 2014 seeks the following
reliefs among others from this Court:<o:p></o:p>a)
Recovery of the sum of Four Hundred and Sixty-Seven Thousand, Five Hundred
Ghana Cedis and Eighty Pesewas (GH¢467,500.80) being the total outstanding
indebtedness of the Defendants to the Plaintiff as at September 30, 2014 as
arising from the two loan facilities.&nbsp; <o:p></o:p>b)
Interest on the said sum of contractual compound rate of five percent (5%) per
month in respect of the first facility and at the contractual compound rate of
four and half percent (4.5%) per month in respect of the second facility till
date of final payment.<o:p></o:p>C)
In the alternative of (a) and b) judicial sale of landed property situate and
lying at Achimota belonging to the 2nd Defendant and mortgage property covered
by land certificate dated September 24, 2009 and registered G. A. 30731 more particularly
described in the schedule.<o:p></o:p>The Defendants, in their
joint Statement of Defence filed on the 8th day of April, 2016, do not deny
being granted the said facilities by Plaintiff but deny that they owe the
amount claimed by Plaintiff on the facilities.&nbsp;
Defendants allege that the Plaintiff was fully aware, that the only
source of funds for the repayment of the facility was from payments to be made
by the Department of Feeder Roads.&nbsp; In
this vein, Plaintiff prior to approving the grant of the facility, demanded and
obtained an agreement that irrevocably guaranteed that payments due the
Defendants will be paid into the Plaintiff’s account with Merchant Bank, Accra
Ridge Branch.&nbsp; Defendants blamed their
failure to amortize the outstanding amount, on the Plaintiff. According to
them, the first payment of Two Hundred and Twenty –Seven Thousand, Nine Hundred
and Twenty Two Ghana Cedis and Sixty-Eight Pesewas (GH¢227,922.68) made to the
1st Defendant by the Department of Feeder Roads if released to them by Plaintiff
could have been used by the 1st Defendant to complete the Bridge Project
pending further payments as a result of which they should have paid off the
outstanding loan in due time. <o:p></o:p>The following issues were
therefore set down by this Court for determination:<o:p></o:p>&nbsp;a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;