ACCESS BANK GHANA LIMITED (PLAINTIFF) vs. MRS. LUCKY AFI ALLOTEY T/A & ANO. (DEFENDANTS) [2017]DLHC7353

ACCESS BANK GHANA LIMITED (PLAINTIFF) vs. MRS. LUCKY AFI ALLOTEY T/A & ANO. (DEF... [2017]DLHC7353

Date	2017-11-24
Suit No.	SUIT NO.: BFS/284/12
Citation No.	[2017]DLHC7353

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. OSEI TUTU NKWANTABISA FOR THE PLAINTIFF

[2017]DLHC7353
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													<main id="main" class="content" style="min-height: 60rem" >ACCESS BANK GHANA LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MRS. LUCKY AFI ALLOTEY T/A &amp; ANO.<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.: BFS/284/12&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:
24TH NOVEMBER, 2017<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. OSEI TUTU NKWANTABISA FOR THE PLAINTIFF<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>In
November 2012, the plaintiff bank instituted the instant action against the
defendants in this matter for:<o:p></o:p>(a)&nbsp;&nbsp; An order for the recovery of Seven Hundred and
Ninety-Nine Thousand, Four Hundred and Twenty-One Ghana Cedis, Fifty-Five
Pesewas (GH¢799,421.55) being the outstanding balance of various banking
facilities advanced by Plaintiff to the 1st Defendant and secured by
the 2nd Defendant.<o:p></o:p>(b)&nbsp;&nbsp; Interest on the said Seven Hundred and Ninety-Nine
Thousand, Four Hundred and Twenty-One Ghana Cedis, Fifty-Five Pesewas
(799,421.55) at the prevailing bank rate from 15th August 2012 up to
date of final payment.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp; An order for the sale of all that piece or parcel
of land, building thereon known as parcel number 371 Block 10, Section 114 at
East Legon, Accra the subject as an equitable mortgage executed in favour of
the Plaintiff by 2nd Defendant.<o:p></o:p>The
1st defendant entered appearance to the writ and filed her statement
of defence. There is however no indication of the filing of an appearance or
statement of defence by the 2nd defendant upon whom the writ was
served by substituted service.<o:p></o:p>The
1st defendant, in her statement of defence raised a counterclaim for
“an order of accounts detailing monies loaned out by the plaintiff to the 1st
defendant, interest component and repayments made by the 1st
defendant”. <o:p></o:p>As
a result, the plaintiff filed a motion for an order for account which was
granted by the court on the 13th day of March 2013. The parties to
the suit were directed by the court to file relevant documents before a referee
in order that accounts may be gone into. However, despite the 1st
defendant’s knowledge of this order, the 1st defendant refused to submit
her documents to the referee but rather took to indulgence in frustrating
strategies just to ensure that the case is never heard. For instance on the 21st
day of January 2015, the 1st defendant unsuccessfully filed a motion
praying for an order to dismiss the suit pending before the court. Eventually,
the court made an order for the referee to go ahead and determine the accounts
with the documents which have been made available to him by the plaintiff in
view of the apparent refusal of the 1st defendant to comply with the
court’s order to submit her documents for accounts to be taken.<o:p></o:p>Thereafter,
the parties were ordered by the court to file their witness statement in order
for the trial to proceed. This was after the referee had brought the accounts to
the court. Despite the service of the order on the 1st defendant
through her lawyer, neither the lawyer nor the 1st defendant ever
appeared in court and for the numerous times that the case was adjourned and
hearing notices served on the 1st defendant through her lawyer, they
refused to appear. The plaintiff was therefore invited to give evidence, which
it did, through a representative on the 7th November 2017.<o:p></o:p>From
the evidence on record the court finds that at the request of the 1st
defendant, the plaintiff bank, beginning from 2008 had extended various
facilities to the 1st defendant on terms as shown by exhibit ‘A’.
The loans and overdrafts given to the 1st defendant were renewed at
the request of the 1st defendant several times over.<o:p></o:p>There
is evidence to the effect that the 1st defendant assigned the stock
of goods traded in as security against the facilities extended to her. The
court also finds that the 2nd defendant created an equitable
mortgage by executing a statutory declaration </main>