NDK FINANCIAL SERVICES vs CASSARY CONSTRUCTION LTD [2019]DLHC16231

Date	2019-09-25
Suit No.	SUIT NO: GJ/718/2017
Citation No.	[2019]DLHC16231

HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO

Mr. Nana Yaw NTRAKWA

J.K. YEBOAH

[2019]DLHC16231
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													<main id="main" class="content" style="min-height: 60rem" >NDK FINANCIAL SERVICES<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs<o:p></o:p>CASSARY CONSTRUCTION LTD<o:p></o:p>(DEFENDANTS/APPLICANTS)<o:p></o:p>[HIGH COURT OF
JUSTICE (GENERAL JURISDICTION DIVISION, COURT 6) ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT
NO: GJ/718/2017&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;25TH SEPTEMBER, 2019<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>Mr. Nana
Yaw NTRAKWA for the Plaintiff – PRESENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Background:<o:p></o:p>[1]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The facts
of this case are free from complexity. The Plaintiff/Respondent which is owed
by the Defendants/Applicants exercised its right under Section 33 (b) of the
Borrowers and Lenders Act, Act 773, 2008 to possess the property of the 2nd
Defendant/Applicant which was used as collateral to secure a loan granted to
the 1st Defendant Company. The record shows that the Plaintiff/Respondent
subsequently obtained an Order for Reserved Price by this Court differently
constituted on December 4, 2017 for the sale of the property. <o:p></o:p>[2]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In their
bid to stop the sale the Defendants/Applicants have brought the instant
application to stay execution. The Applicants are “praying for an order for
stay of execution of the judgment obtained by the Plaintiff/Respondent on the
basis of the facts set out in the accompanying affidavit and for any other
order or orders as this Honourable Court may consider appropriate”. &nbsp;For the record the Defendants/Applicants have
not filed any appeal against the said “judgment” or order neither is the order
set aside. The Plaintiff/Respondent has filed an affidavit in opposition and
has argued that the application is incompetent and a ruse to prevent the
Plaintiff from “enjoying the fruits of the judgment against the Applicants”.<o:p></o:p>&nbsp;ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Affidavit Evidence:<o:p></o:p>[3] In the affidavit in support the Applicants say even
though the Plaintiff has invoked Section 33(b) of the Borrowers and Lenders Act
to possess the house of the 2nd Defendant used as collateral to secure a loan
granted to the 1st Defendant; that notwithstanding, it is the case of the
Applicants that on “the 8th of November, 2011 the Plaintiff/Respondent issued
another writ against the 1st Defendant/Applicant, the 4th Defendant and two
others in Suit No. CM/BFS/0050/2019” for certain reliefs endorsed on the said
writ of summons including the recovery of the “sum of Five Million, Seven
Hundred and Nineteen Thousand, Forty-Five Ghana Cedis and Seventy Six pesewas
(GH¢5,719,045.76) as at 1st November 2018 and interest on the said
sum”. A copy of the said writ of summons and its accompanying statement of
claim was attached as Exhibits “A” and “A1”<o:p></o:p>&nbsp;[4] The Applicants contend that the Defendants entered
appearance to the suit and filed their defence on the 21st of January, 2019 and
said “the whole loan contract had been frustrated by government intervention
and that the Plaintiff could not be entitled to any of its claim”. A copy of
the statement of defence filed was attached as Exhibit “B”.<o:p></o:p>&nbsp;[5]&nbsp; According to the Applicants
“the
Plaintiff/Respondent cannot levy execution initiated under the Borrowers and
Lenders Act by selling the house of the 2nd Defendant upon the purported
possession of same. It is also the case of the Applicants that “in an event
that the claim of the Plaintiff/Respondent is dismissed the sale of the house
of the 2nd Defendant/Applicant becomes unlawful under the circumstances”. Based
on the above, the Applicants pray that the execution of the Judgment be stayed
pending the outcome of Suit No: CM/BFS/0050/2019. <o:p></o:p>&nbsp;[6]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Plaintiff/Respondent
is opposed to the application and filed an affidavit in opposition. The
affidavit in opposition was deposed to by Mark Ofori a Loan Recovery Officer of
the Plaintiff Company. According to Mr. Ofori the Respondent is vehemently
opposed to the application and states that “the application is not only an
abuse of the court process, but has been brought in bad faith with the sole aim
of depriving the Respondent of enjoying the fruit of its Judgment against the
Applicants”. The Plaintiff also contends that “the application is contrary to
law and incompetent as the Applicants failed to attach a copy of the Judgment
whose execution they seek to stay to their application”.<o:p></o:p>&nbsp;[7]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Plaintiff/Respondent denied paragraphs 7 and 8 of the Applicants’ affidavit in support
of the application. In response Mr. Ofori deposed that “I am advised by lawyer
for the Respondent and verily believe same to be true that the defence of the
Applicants is a sham as no event of frustration has occurred which prevented
the Applicants from the possession or sale of the land which was the main
object of the loan agreement”.<o:p></o:p>&nbsp;[8]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Plaintiff further deposed that