AMALGAMATED BANK LTD vs. ALFERDOS MANUFACTURING & TRADING LTD & 4 OTHERS [2018]DLHC6291

Date	2018-06-14
Suit No.	Suit No. BFS/31/10
Citation No.	[2018]DLHC6291

JENNIFER DODOO (MRS)

E. E ANNAN FOR PLAINTIFF

YAW OPOKU-ADJAYE FOR 4TH DEFENDANT

[2018]DLHC6291
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													<main id="main" class="content" style="min-height: 60rem" >AMALGAMATED BANK LTD<o:p></o:p>{PLAINTIFF}<o:p></o:p>vs.<o:p></o:p>ALFERDOS MANUFACTURING &amp; TRADING LTD &amp; 4 OTHERS<o:p></o:p>{DEFENDANTS}<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;
padding:0in 0in 1.0pt 0in">

Suit No. BFS/31/10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 14TH JUNE 2018<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>E. E ANNAN FOR PLAINTIFF<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">

YAW OPOKU-ADJAYE FOR 4TH
DEFENDANT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>JENNIFER DODOO (MRS) JUSTICE OF THE
HIGH COURT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>The Plaintiff claimed against the
Defendants jointly and severally, for the recovery of the sum of GH¢991,352.69
being the outstanding balance of an overdraft facility granted to the 1st
Defendant together with interest at the rate of&nbsp;
32% per annum from 13th November 2009 till the date of final
payment.<o:p></o:p><o:p>&nbsp;</o:p>Alternatively, the Plaintiff prayed
the court for an order of judicial sale of properties situate at No. 115
Kaneshie Housing Estate and Plot No. E180/17 Kotobabi Down belonging to the 4th
Defendant as well as 5th Defendant’s property at Sampaman, Mile 9
Winneba Road which had been mortgaged in favour of the Plaintiff. <o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff deposed in its
statement of claim that the 1st Defendant was granted an overdraft
facility in the sum of GH¢800,000.00 to augment its working capital.&nbsp; This was at an interest rate of 32.75% per
annum, a default interest of 1% per annum and an additional penal interest of
6% on the amount which remained unpaid per month when same was due for
repayment.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiff stated that as a
condition precedent to the grant of the facility, the 2nd and 3rd
Defendants as Managing Director and General Manager, undertook to be jointly
and severally liable to the Plaintiff should the 1st Defendant, a
limited liability company fail to honour its obligations.<o:p></o:p><o:p>&nbsp;</o:p>As further security for the loan,
the 4th and 5th Defendants mortgaged their landed
properties.<o:p></o:p><o:p>&nbsp;</o:p>The Defendants all caused Counsel to
enter appearance to the suit. It was however only 4th Defendant
which delivered a Defence and a Counterclaim.<o:p></o:p><o:p>&nbsp;</o:p>In his Amended Defence and
Counterclaim, the 4th Defendant said that he used his property as
security for the repayment of a facility of GH¢500,000.00 on 12th
February 2007.&nbsp; He contended that this
loan was paid off and instead of his property being released, and in the teeth
of his protests, the 2nd Defendant took another loan from the
Plaintiff using his property as collateral <o:p></o:p><o:p>&nbsp;</o:p>He also averred that he was desirous
of selling his property and the 2nd Defendant had told him he had a
business partner who would be willing to purchase it. He said several persons
had promised to purchase the house at North Kaneshie which price he had quoted
as $1,200,000.00.&nbsp; He therefore asserted
that he had suffered loss and damage due to the Plaintiff’s conduct.<o:p></o:p><o:p>&nbsp;</o:p>He therefore put in a counterclaim
for the sum of $1,200,000.00 being the sale price of House No. 115 North
Kaneshie, Accra together with interest from 2nd October 2008 till
the date of final payment.&nbsp; He also
prayed for the release of his title deeds on House No. E180/7 Kotobabi, Accra
and House No. 115 North Kaneshie, Accra<o:p></o:p><o:p>&nbsp;</o:p>The issues settled for trial were:<o:p></o:p><o:p>&nbsp;</o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l3 level1 lfo1">Whether or not the loan
 facility was fraudulently acquired?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l3 level1 lfo1">Whether or not the plaintiff is
 entitled to its claim?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l3 level1 lfo1">Whether or not the 4th
 Defendant is entitled to his counterclaim? <o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>Before the trial commenced terms of
settlement were entered between the Plaintiff and the 1st and 3rd
Defendants.&nbsp; The terms of settlement were
as follows:<o:p></o:p><o:p>&nbsp;</o:p><!--[if !supportL</main>