BSIC GHANA LIMITED vs. GYAMFUA ABABIO INVESTMENTS LIMITED AND ANOR [2019]DLHC6884

Date	2019-06-18
Suit No.	SUIT NO: BFS/33/2019
Citation No.	[2019]DLHC6884

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

KAMIL MOHAMMED IDDRISU FOR THE PLAINTIFF/APPLICANT

MUJEEB RAHMAN AHMED FOR THE DEFENDANTS/RESPONDENTS

[2019]DLHC6884
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													<main id="main" class="content" style="min-height: 60rem" >BSIC GHANA
LIMITED<o:p></o:p>vs.<o:p></o:p>GYAMFUA
ABABIO INVESTMENTS LIMITED AND ANOR<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: BFS/33/2019&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: 18TH
JUNE, 2019<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>KAMIL
MOHAMMED IDDRISU FOR THE PLAINTIFF/APPLICANT<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">

MUJEEB
RAHMAN AHMED FOR THE DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM: <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" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">HIS LORDSHIP JUSTICE DR.
RICHMOND OSEI-HWERE<o:p></o:p>

</div><o:p>&nbsp;</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 Plaintiff/Applicant (hereinafter called the “Applicant”) is
praying for an order for preservation of the immovable property located at Plot
No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi. <o:p></o:p>This
application is supported by a 10 paragraph affidavit filed on behalf of the
applicant on 15th February, 2019. <o:p></o:p>It
is the applicant’s case that the instant suit stems from the 1st
defendant’s/1strespondent’s default in paying credit facilities
extended to it by the applicant despite the fact that the facilities have been
called in and various demand notices have been served on the 1st
respondent. The applicant contends that since the aforesaid property which
belongs to the 2nd respondent was mortgaged to secure the loan
facility, it is just and convenient for the property to be preserved by the
court to prevent the dissipation of the same by the 2nd respondent.
Counsel for the applicant submits that the application is grounded under Order
25 rule 2 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which gives
the court the discretionary power to preserve the property pending the final
determination of the case. In response to the respondents’ assertion that a
different property has been offered to the applicant to substitute the property
in issue, Counsel argues that there is no such documentary evidence to verify
the assertion. That, there is no deed of discharge of the mortgage property in
issue. He prays the court to grant the application.<o:p></o:p>The
defendants/respondents (hereinafter called the “Respondents”) are opposed to
the application and they have demonstrated their opposition in a 19 paragraph
affidavit. <o:p></o:p>Counsel
for the respondents submits that it is too late in the day for counsel for the
applicant to question the non-availability of evidence relating to the fact
that they have substituted the property in issue (property located at Plot No.
4, 16th Street, Section 3, Atasomanso Layout, Kumasi)with another property.
Counsel makes reference to the statement of defence as well as the affidavit in
opposition and submits that since the applicant failed to file a reply and a
supplementary affidavit respectively to deny the averment that the mortgaged
property has been substituted with a different property, it is deemed to have
admitted the said substitution. He argues that by failing to deny this material
fact, the applicant is caught by the principle in the case of Asumin v DIC and
640 others where the court held that failure to deny a material fact constitutes
an admission. Counsel contends that the grant of the application will prejudice
their case since the said substitution forms a material part of their case.
Counsel also refers to the mortgage agreement (Exhibit J), paragraph 4 and
submits that per the provision it is clear that the respondents cannot create
any other interest in the property. Thus, the notion that the property can be
dissipated is misplaced. He invited the court to dismiss the application.<o:p></o:p>Order
25 rule 2 of CI 47 provides:<o:p></o:p>Rule 2—Detention, Preservation of
Property <o:p></o:p>(1) On the application of any party to
a cause or matter the Court may make an order for the detention, custody or
preservation of any property which is the subject-matter of the cause or matter
or in respect of which any question may arise in the action, or may order the
inspection of any such property in the possession of a party. <o:p></o:p>(2) To enable an order under subrule
(1) to be carried out the Court may by the order authorise any person to enter
upon any land or building in the possession of any party to the cause or
matter. <o:p></o:p>(3) Where the right of a party to a
specific fund is disputed, the Court may, on the application of a party to the
cause or matter, order the fund to be paid into court or otherwise secured. <o:p></o:p>(4) An order under this rule may be
made on such terms as the Court considers just. <o:p></o:p>