CAL BANK LTD. (PLAINTIFF/JUDGMENT/CREDITOR) vs. TELEDATA CO. LTD., GREGORY EID AND GHIDA EID (DEFENDANT/JUDGMENT/DEBTORS) [2018]DLHC7320

CAL BANK LTD. (PLAINTIFF/JUDGMENT/CREDITOR) vs. TELEDATA CO. LTD., GREGORY EID A... [2018]DLHC7320

Date	2018-12-14
Suit No.	SUIT NO.: BFS/275/12 & SUIT NO. CM/INTD/0055/18
Citation No.	[2018]DLHC7320

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. MCKEOWN AMENANO- BESE WITH SERWAA BARYEH FOR S. ARHINESQ. FOR THE PLAINTIFF/J/CREDITOR.

JEDIDIAH WILLIAMS FOR BOBBY BANSON FOR THE CLAIMANT

[2018]DLHC7320
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >CAL BANK LTD.<o:p></o:p>(PLAINTIFF/JUDGMENT/CREDITOR)<o:p></o:p>vs.<o:p></o:p>TELEDATA CO. LTD.,
GREGORY EID AND GHIDA EID<o:p></o:p>(DEFENDANT/JUDGMENT/DEBTORS)<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;
padding:0in 0in 1.0pt 0in">

SUIT NO.: BFS/275/12 &amp; SUIT NO.
CM/INTD/0055/18&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 DECEMBER, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR. MCKEOWN AMENANO- BESE
WITH SERWAA BARYEH FOR S. ARHINESQ., FOR THE PLAINTIFF/J/CREDITOR.<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">

JEDIDIAH
WILLIAMS FOR BOBBY BANSON FOR THE CLAIMANT<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;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;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:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The
Plaintiff/Execution/Judgment Creditor (hereinafter referred to as the
plaintiff) sued and obtained judgment against the Defendants/Judgment Debtors
(hereinafter referred to as the defendants) on the 17th February,
2015. This judgment was formally entered on notice to the defendants on the 23rd
March, 2015. It appears that the plaintiff attached some assets of the 1st
defendant under a writ of fi.fa. and sold them but the amount realised was not
enough to satisfy the entirety of the judgment debt; hence, the plaintiff
attached more assets of the 1st defendant under fi.fa. issued on the
22nd May, 2018. Following the further attachment of the 1st
defendant’s properties, Rosalia Mansour, filed a notice of claim in which it
asserted that she has a fixed and floating charge over the properties of the 1st
defendant company. The matter was heard and evidence was taken from the parties.
<o:p></o:p>It
has been submitted on behalf of the claimant, Rosalia Mansour, that the assets
of the 1st defendant company which have been seized by the sheriff
of the court be released from attachment in view of the fixed and floating
charges created in her favour by the 1st defendant company.<o:p></o:p>From
the evidence on record the court finds that the claimant herein entered into an
agreement with the 1st defendant herein on the 1st
December, 2014 and also on the 1st February, 2015 in which the
claimant committed herself into granting a loan of $100,000.00 and $400,000.00
respectively to the 1st defendant as shown by exhibits A and D
herein. There is also evidence to the effect that after the loan agreements,
the 1st defendant created a fixed and floating charge over its
assets in favour of the claimant. This is clearly evidenced by exhibits B and E
herein. Subsequently, the claimant took steps to have the said charges
registered by the Registrar of Companies. Exhibits C and F attest to this fact.
<o:p></o:p>The
question before the court is whether or not by virtue of the claimant’s fixed
and floating charge over the assets of the 1st defendant company,
the plaintiff/execution/ judgment creditor is thereby debarred from causing the
said properties to be attached in execution of the judgment which it has
obtained against the 1st defendant/judgment debtor.<o:p></o:p>It
has been submitted on behalf of the claimant that “where a debenture is issued
by a company thereby creating a valid charge over the assets of the company
that charge should prevail over any claim by a judgment creditor.” Counsel
quoted the case of GEORGE COHEN (W.A.)
LTD. v. COMET CONSTRUCTION CO., LTD.; GHANA COMMERCIAL BANK (CLAIMANTS) [1966]
GLR 777 in support of his submission. In that case, Edusei J (as he then
was) held among others that:<o:p></o:p>The debenture, if valid, undoubtedly creates a
charge on the assets of the company is now well established ever since: see Re
Standard Manufacturing Co.1 and Re Opera Ltd. 2 These cases decide that such
charges prevail as against an execution creditor if the debenture is valid. See
page 779 of the report.<o:p></o:p>The
above ruling seeks to say, in effect, that once it is shown to the court that a
valid charge has been created over the assets of the debtor, the execution
creditor is debarred from carrying on with his execution.<o:p></o:p>One
issue to consider in resolving the question posed is whether the rights of the
claimant have accrued within the terms of the loan agreement. This is so
because the loan agreements have set out conditions and circumstances under
which the claimant could call for the repayment of the loan advanced to the 1st
defendant. These conditions precedent must occur before the claimant can call
in the loan advanced. Indeed, paragraphs 7.1 of both exhibits B and E, the
fixed and floating charges herein provides that:<o:p></o:p>7.1
This Charge shall become enforceable against the Chargor upon its default to
pay all sums owed to the Lender upon terms as stated in the Agreement dated 1st
of February, 2015.<o:p></o:p>Clearly,
therefore, it is only by compliance with the provisions of the charge agreements
as well as the loan agreements that the claimant can call upon the 1st
defendant to make good any money advanced to it by the claimant. Hence, one
ought to turn to the loan agreements to find out the events upon whose
occurrence, steps may be taken by the claimant to exercise her rights under the
loan agreements as well as the charge agreements.<o:p></o:p>Under
paragraph 7.2 of the loan agreements, it is provided that the claimant shall
exercise her right to call for the payment of the loan a</main>