BOND SAVINGS AND LOANS LTD. vs. ZEKIEL HOMES LTD. & ANOTHER [2017]DLHC9083

Date	2017-04-07
Suit No.	SUIT NO. MISC/009/2017
Citation No.	[2017]DLHC9083

HER LADYSHIP JUSTICE JENNIFER ABENA DADZIE

FIIFI ABAM ESQ. WITH JULIUS NKETSIAH ESQ. OF ROMANLEVI & ASSOCIATES COUNSEL FOR PLAINTIFF/APPLICANT

KWASI ADU-MANTE ESQ. OF K-SAN LAW FIRM COUNSEL FOR 1ST & 2ND DEFENDANTS/RESPONDENTS

[2017]DLHC9083
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													<main id="main" class="content" style="min-height: 60rem" >BOND
SAVINGS AND LOANS LTD.<o:p></o:p>(PLAINTIFF/APPLICANT)<o:p></o:p>vs.<o:p></o:p>ZEKIEL HOMES LTD. &amp;
ANOTHER<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></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:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. MISC/009/2017&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
7TH APRIL, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FIIFI ABAM, ESQ., WITH JULIUS NKETSIAH, ESQ., OF ROMANLEVI
&amp; ASSOCIATES, COUNSEL FOR PLAINTIFF/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWASI
ADU-MANTE, ESQ.&nbsp; OF K-SAN LAW FIRM,
COUNSEL FOR 1ST &amp; 2ND DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP JUSTICE JENNIFER ABENA
DADZIE<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="text-align:center;line-height:normal;
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">RULING<o:p></o:p>

</div>This is an application by
Plaintiff/Applicant (hereinafter Applicant) for an Order for a Warrant to take
Possession of a residential estate situate at Adjiringanor and a 2.5 acre
parcel of land situate at Burma Hills, La Dadekotopon, in Accra belonging to
the Defendants/Respondents herein (hereinafter, Respondents) pursuant to S.34
(2) of the Borrowers and Lender’s Act, 2008, Act 773 (hereinafter, Act 773), on
the grounds of the Respondents default in their repayment obligations arising from
the loan agreement entered into by the parties herein.<o:p></o:p>I have read the application, the
supporting Affidavit and examined the various exhibits placed in evidence by
the parties.&nbsp; Detailed in the Affidavit
accompanying the motion paper are the facts, which, according to the Applicant,
gave rise to the instant application.<o:p></o:p>It is the case of the Applicant per
Exhibit EN1 that on or about July 16, 2014, the 1st
Defendant/Respondent took a loan facility of Two million, Seven Hundred and
Twenty Thousand Ghana Cedis (GH ₵2,720,000.00) from the Applicant at an
agreed interest rate for a period expiring on July 31, 2015.&nbsp; Applicant claims that the 1st
Defendant/Respondent secured the loan with the 2.5 acre bare land situate at
Burma Hills and a 3rd party security provided by the 2nd
Defendant/Respondent by way of the residential estate situate at Adjiringanor,
Accra.&nbsp; [See Exhibit EN2 Series].
Applicant states further that it created a charge over the securities at the
Collateral Registry of the Bank of Ghana under Act 773 as contained in Exhibit
EN3.&nbsp; <o:p></o:p>The Applicant avers further that it
made several unsuccessful demands on the 1st Defendant/Respondent to
make good its contractual obligation to repay the loan when the 1st
Defendant/Respondent failed to make three (3) consecutive payments that were
due and payable.&nbsp; From Applicant’s
Exhibit EN5 Series, it is clear that these demands for the balance due and
payable commenced sometime in May 2015.&nbsp;
wherefore, upon the apparent default of the Respondents, Applicant obtained
a Memorandum of No Objection from the Collateral Registry pursuant to S.33 (b)
of Act 773 in a bid to realise the securities.&nbsp;
The Memorandum of No Objection is exhibited as part of Exhibit EN6
series.&nbsp; It is the case of the Applicant
that this instant application has been precipitated by the Defendant’s refusal
to grant vacant possession of the security to the Applicant to enable it
realise same.&nbsp; See Exhibit EN7.<o:p></o:p>As is to be expected, the Respondents
are opposed to the Application on grounds contained in their Affidavit in
Opposition and the submission of their Counsel and which grounds, in the
relevant parts, will be addressed in the course of this ruling.<o:p></o:p>I have heard from Counsel for both
parties as they argued out before me the respective positions of their clients
on this matter and I have considered the authorities and the law relevant to
this application.<o:p></o:p>It is the contention of the Respondents
that they dispute their indebtedness as presented by the Applicant as the
Statement of Account contained in Exhibit EN8 is, in their own words “riddled with inconsistencies and over
charging thereby rendering the said statement inaccurate”.&nbsp; The question I ask myself is, has the
Plaintiff/Applicant’s right to realise the security in the collaterals accrued
under the loan agreement and under Act 773?<o:p></o:p>A re-phrase of S.32 of the Act 773
would state in other words that a borrower is in default if it fails to make
payment on the due date for a payment.&nbsp;
The Rules for Effective Implementation of Act 773 issued by the Bank of
Ghana pursuant to S.7 of the Act 773 (hereinafter the Registry Rules under Act
773) mandates in its S.17, by way of implementing S.32 of Act 773, that the
Applicant grant the Respondents thirty (30) days to cure a default which has
been brought to their notice pursuant to S</main>