GROFINAFRICA FUND (GH) LTD vs. COLL BIY ENTERPRISES LTD AND 2 OTHERS [2018]DLHC3681

Date	2018-05-09
Suit No.	SUIT NO. MISC/0132/17
Citation No.	[2018]DLHC3681

GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT

SEAN POKU FOR APPLICANT

KWAME BOAFO FOR RESPONDENTS

[2018]DLHC3681
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													<main id="main" class="content" style="min-height: 60rem" >GROFINAFRICA FUND (GH) LTD<o:p></o:p>vs.<o:p></o:p>COLL BIY ENTERPRISES LTD AND 2 OTHERS<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p>SUIT NO. MISC/0132/17&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; &nbsp; &nbsp; &nbsp; &nbsp;9TH
MAY, 2018<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>COUNSEL:<o:p></o:p>SEAN POKU FOR APPLICANT <o:p></o:p>KWAME BOAFO FOR RESPONDENTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>CORAM:<o:p></o:p>GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>JUDGMENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>In this application, the applicant prays this court for an order
for warrant to realize and or take possession of the property situate at Gbawe
North, Accra in the Greater Accra Region known as plot no. 67 (Sector F). <o:p></o:p><o:p>&nbsp;</o:p>The respondents resist the application. The case of the applicant
is that the 1st respondent applied for a loan facility in the sum of
GH¢215,000.00 on the 14th of May, 2012 at an agreed interest rate of
24.25% per annum. The purpose of the facility was for the 1st respondent
to augment its capital. The 2nd respondent is the managing director
or the Chief Executive of the 1st respondent. It is the case of the
applicant that the 2nd respondent personally guaranteed the loan for
and on behalf of the 1st respondent. Furthermore, the applicant
contends that the 2nd and 3rd respondents who are both
directors and shareholders of the 1st respondent company, provided 3rd
party legal mortgage over the property which has been described earlier
on in this ruling. The applicant further contended that in compliance with the
Borrowers and Lenders Act, 2008 (Act 773) the property used by the 2nd and
3rd respondents to secure the facility was registered with the
collateral registry of Bank of Ghana. It is further the case of the applicant
that it was agreed between the 1st respondent and the applicant that
1st respondent was to repay the facility so granted by monthly
installment of GH¢6,292.00 until the debt was fully liquidated. <o:p></o:p><o:p>&nbsp;</o:p>The applicant further contended that in the event of a default,
the applicant was to demand repayment of the outstanding indebtedness.
Applicant further stated that the respondents defaulted repayment of the
facility as at 31st May, 2016. As at 31st May, 2016, the
total indebtedness of the respondents stood at GH¢381,982.00 with interest
still running on the agreed rate until the date of full and final payment. <o:p></o:p><o:p>&nbsp;</o:p>Despite several demands made by the applicant, the respondent
failed, refused and or neglected to make payment of the outstanding balance. <o:p></o:p><o:p>&nbsp;</o:p>The respondent on the other hand admitted requesting for the said
facility from the applicant. Their case however is that, the applicant paid a
first tranche of the facility to the account which they provided. It is further
the contention of the respondent that the applicant did not pay the 2nd instalment
to the proper account as a result of which their supplier did not receive the
money. It is therefore the case of the respondent that they are not liable to
the applicant on the sum claimed as they have fully settled the amount paid to
them. From the pleadings before me, the issues that <o:p></o:p>I have to adjudicate on are; <o:p></o:p>