FIDELITY BANK LTD. vs. ALFERDOS MANUFACTURING & TRADING LTD, JOSEPH KARAM AND OTHERS [2017]DLHC11613

FIDELITY BANK LTD. vs. ALFERDOS MANUFACTURING & TRADING LTD, JOSEPH KARAM AND OT... [2017]DLHC11613

Date	2017-01-19
Suit No.	SUIT NO: BC/75/2010
Citation No.	[2017]DLHC11613

HIS LORDSHIP ALHAJ JUSTICE ABDULLAH IDDRISU

BABA AVIO (FOR THE PLAINTIFF)

W.H. AUGUST (FOR THE 4TH AND 5TH DEFENDANTS)

[2017]DLHC11613
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													<main id="main" class="content" style="min-height: 60rem" >FIDELITY BANK LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ALFERDOS MANUFACTURING &amp; TRADING LTD, JOSEPH KARAM AND
OTHERS<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;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO: BC/75/2010&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: 19TH JANUARY, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BABA
AVIO (FOR THE 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;">

W.H. AUGUST (FOR THE 4TH AND 5TH
DEFENDANTS)<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP ALHAJ JUSTICE ABDULLAH IDDRISU<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">JUDGMENT<o:p></o:p>

</div>&nbsp;The Plaintiff on 18th
November, 2009 issued a writ of summons with accompanying statement of claim
against the Defendants for the following reliefs:<o:p></o:p>a.
An amount of GH¢1,215,876.74 being outstanding balance of facility granted 1st
Defendant.<o:p></o:p>b.
Interest on the said sum of GH¢1,215,876.74 at 25.75% per annum from 22/10/2009
until date of final payment.<o:p></o:p>c.
Default interest of 6% per annum on the overdue balance of <o:p></o:p>GH¢1,215,876.74
as agreed from 22/10/2009 till date of final payment.<o:p></o:p>d.
8% of the outstanding amount of GH¢1,215,876.74 being incidental cost of
recovery as agreed.<o:p></o:p>e.
Alternatively an order for Judicial Sale of properties Nos GA 18197 and GA
25846 located at Achimota and Laterbiokorshie and used as collateral for the
facility.<o:p></o:p>In its accompanying
Statement of Claim the Plaintiff averred that upon application it approved an
overdraft facility of GH¢1,000,000.00 to 1stDefendant in a letter dated
4/6/2008 for a period of twelve months which 1st Defendant accepted.
That the 2nd and 3rd Defendants as Directors of the 1st Defendant
Company executed joint and several guarantee in favour of Plaintiff. That the
4th and 5th Defendants executed deeds of mortgage of their properties in favour
of Plaintiff. That the facility was granted at an interest rate of 25.75% per
annum which was subject to default interest of 6% and 1st Defendant agreed to
bear all legal expenses including cost of recovery in case of default. That as
a result of the failure of Defendants to liquidate the&nbsp; facility the Plaintiff engaged Johnson
Complex (GH) Limited to recover same and agreed to pay a Commission of 8% of
the Principal sum as recovery fee and that as at 21/10/2009, the outstanding
indebtedness of 1st Defendant stood at GH¢1,215,876.74.<o:p></o:p>It must however be noted
that the 1st, 2nd and 3rd Defendants entered appearance through a lawyer but
failed to file their Statement of Defence. <o:p></o:p>On 13/5/2010, following an
application by the Plaintiff, Summary Judgment was entered against the 1st, 2nd
and 3rd Defendants.<o:p></o:p>The 4th and 5th defendants
filed their statements of defence and denied every allegation of fact in the
plaintiff’s statement of claim.<o:p></o:p>The 4th defendant states
that he executed the said deed of mortgage under fraudulent representations
made to him by one officer of the plaintiff bank by name Mr. Asante which
representations the 4th defendant relied upon to his detriment.<o:p></o:p>The 4th defendant gave the
particulars of fraud as follows:<o:p></o:p>PARTICULARS
OF FRAUD<o:p></o:p>(a)
That Mr. Asante represented to the 4th defendant that the 2nd
defendant is a credit worth customer and that the 4th defendant should not
entertain any fears since signing of the document was a normal practice.<o:p></o:p>(b)
That the said Mr. Asante also told the 4th defendant that he had previously
worked on the bank account of the 2nd defendant at his former bank before
joining the plaintiff bank, hence the trust worthiness of the 2nd defendant
could not be doubted.<o:p></o:p>(c)
That Mr. Asante prior to giving the Deed of Mortgage to the 4th
defendant for execution represented to the 4th defendant that the 2nd
defendant was a credible customer and the 2nd defendant would pay any amount of
money contracted with the plaintiff, which representation induced the 4th
defendant to reply on it to his detriment.<o:p></o:p>The 4th defendant also
stated as follows:<o:p></o:p>In further response to
paragraph 6 of the plaintiff’s statement of claim the 4th defendant
says that Mr. Asante who supervised the execution of the Deed of Mortgage
failed to explain the contents to the 4th defendant, rather he induced him to
execute the said document by telling him that it was “mere formality” for the
4th defendant to append his signature on the document.<o:p></o:p>