MERCHANT BANK LTD vs. DAMAX CONSTRUCTION CO. LTD., BENJAMIN NTIRI ABOAGYE DUMAS, JOHNSON ATUOBI, GOERGE NTIRI SAFO AND MANSFIELD ASANTE NTIRI [2016]DLHC4272

MERCHANT BANK LTD vs. DAMAX CONSTRUCTION CO. LTD., BENJAMIN NTIRI ABOAGYE DUMAS,... [2016]DLHC4272

Date	2016-01-22
Suit No.	SUIT NO. BFS/115/2012
Citation No.	[2016]DLHC4272

SAMUEL K. A. ASIEDU

CECIL AGYEN FOR SOMUAH ASAMOAH FOR THE DEFENDANT

[2016]DLHC4272
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">MERCHANT BANK LTD 
vs.<o:p></o:p></a>DAMAX CONSTRUCTION CO. LTD.,
BENJAMIN NTIRI ABOAGYE DUMAS, JOHNSON ATUOBI, GOERGE NTIRI SAFO AND MANSFIELD
ASANTE NTIRI&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), 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. BFS/115/2012&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: 22ND JANUARY, 2016 <o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMUEL K. A. ASIEDU,
JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>By a writ of summons issued on the 22nd
May 2012 the plaintiff claims against the defendants:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify; border: none;">An order for the recovery of GH₵668,504.42 being the balance due and
 owing as at April 2, 2012 on account of credit facilities extended to 1st
 defendant by plaintiff on July 27, 2007 repayment of which was guaranteed
 by 2nd, 3rd, 4th and 5th
 defendants but settlement of which defendants have failed to make good
 several demand notices notwithstanding.<o:p></o:p></li>
 <li class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify; border: none;">Interest on the said sum of GH₵668,504.42 at the rate of 22.5% per
 annum calculated at the close of each day and payable at the end of every
 month on compound basis from April 2, 2012, up to and inclusive of the
 date of final payment.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align: justify; border: none;">Costs, including
 legal fees, assessed at 10% of the aggregate sum due and payable under the
 facilities.<o:p></o:p></li>
</ol>The defendants entered Appearance and filed
their Defence after the service on them of the Writ and Statement of Claim. A
Reply was subsequently filed by the plaintiff and after an unsuccessful
pre-trial settlement proceeding, the matter was set down for hearing at which;
the plaintiff gave evidence through a representative and then called one
witness to close its case. The defendants also gave evidence through the 2nd
defendant and closed their case.<o:p></o:p>From the pleadings the court finds that the
defendants have admitted that the plaintiff is a corporate body which provides
banking and financial services to members of the public. The court also finds
that the defendants have admitted that the 1st defendant is a
limited liability company which deals in real estate development and the supply
of sand, stones and building blocks. Again the defendants have admitted by
their statement of defence that the 2nd, 3rd, 4th
and 5th defendants are all directors of the 1st defendant
company.<o:p></o:p>From the pleadings the court finds that upon
the request of the 1st defendant the plaintiff made available to the
1st defendant various facilities including an overdraft, a short
term loan and a medium term loan in the year 2007 on terms stipulated in the
agreement entered between the parties which was received in evidence as exhibit
A. <o:p></o:p>It is also not in dispute that the overdraft
facility and the short term loan were to expire on the 31st July,
2008. Again it is not in dispute that the medium term loan was also to expire
on the 30th April, 2008. The court further finds from the pleadings
that the 1st defendant company executed a legal mortgage and thus
created a charge over all that piece or parcel of land situate and being at
Kuntunse near Pokuase in favour of the plaintiff bank.<o:p></o:p>From the evidence on record, particularly
exhibit C, the court finds that the 2nd, 3rd and the 4th
defendants on the 10th March, 2006 executed a Guarantee in favour of
the plaintiff and, by that, they bound themselves to pay, on demand, any sums
of money owing by the 1st defendant on account of facilities made
available to the 1st defendant by the plaintiff. <o:p></o:p>