EVADOX LTD VS SAHEL SAHARA BANK LTD & ANOTHER
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION
    ACCRA- A.D 2019
EVADOX LTD - (Plaintiff)
SAHEL SAHARA BANK LTD - (defendant)

DATE:  19TH NOVEMBER, 2018
SUIT NO:  CM/BDC/0237/18
JUDGES:  ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
LAWYERS: 
RULING

Defendant/Counter Claimant/Applicant has brought this application for orders in nature of interlocutory injunction to restrain the Respondents/Defendants to the counter claim and their agents, assigns, and persons claiming through them from transferring, leasing, selling, encumbering, disposing or otherwise dealing with nine properties that were used by the 1st Respondent to secure loans granted by the Applicant as well the use of some of some of the properties by 1st Respondent as securities for Applicant’s issuance of Bank guarantee to enable 1st Respondent access a Fifteen Million Cedis from COCOBOD as seed fund.

 

To Applicant due to the nature of some of the documents evidencing ownership which were incomplete the 1st Respondent undertook to regularize the land documents after the disbursement of the credit facilities to enable Applicant proceed to perfect the mortgages. Applicant contend that 1st Respondent has defaulted in the repayment of the loans and same has been restructured several times. That Respondents are indebted to Applicant an amount in excess of Gh¢5,629,158.11 as well as being faced with a contingency liability of Gh¢1,654,283.29 which represent the amount that 1st Respondent owe COCOBOD and which Applicant issued a guarantee.

 

To Applicant notwithstanding the mortgage of the nine properties, 1st Respondent has attempted and is attempting to sell the mortgaged properties in contravention of the mortgaged agreements and even had to caution the Lands Commission about any such conduct on the part of the Respondents and hence its application for order from the court to restrain the Respondents. Respondents have resisted the application through an affidavit in opposition filed by Ms Sika Aggrey. They claim that after the disbursement of the loans by Applicant to the 1st Respondent matters became difficult which affected the repayments which matters are known to the Applicant. She then states in paragraph 7 of the affidavit in opposition as follows:

“That I verily believe that the Respondents have an unfettered right in law (irrespective of having mortgaged them) to put up their properties for sale subject to their statutory right of redemption and upon receiving offers from prospective buyers obtain the consent of Applicant to the sale of the said properties where the sale proceeds will be made directly to the Applicant against a discharge of the mortgages on the properties”.

 

She then claim that with the mortgaged properties registered no sale to a third party can prejudice the interest of the Applicant and Respondents are shocked to be accused by Applicant of engaging in a criminal conduct. That due notice has been given to the Applicant of the intention of the Respondents to dispose of some of the properties to liquidate the debt with Applicant appointing a reputable Estate Agency to value and market the properties. Following these a prospective buyer was secured who made an offer but same was rejected by the Applicant and therefore was surprise to receive this application which it described as fanciful and calls for the refusal of the application. Order 25 Rule 1 of the High Court (Civil Procedure) Rules, C. I. 47 states as follows:

“The court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just”

 

In an application for interlocutory injunction it is the duty of the Applicant to demonstrate a number of factors, among which are, that there is a right that ought to be protected at law or in equity, that greater and irreparable hardship will be occasioned by the refusal of the application, that the application is not frivolous or vexatious and that compensation may not be adequate remedy. See the following cases: OWUSU v OWUSU ANSAH [2007-2008] SCGLR 870 at 875, VANDERPUYE v NARTEY [1977] 1 GLR 428; AMERICAN CYNAMID CO v ETHICON CO. LTD [1975] AC 396, THOMAS APPIAH ANSAH v NANA KATAKYIRE II Suit No. H1/154/11CA.

 

The mortgages that are at the heart of this application are seen in Ex BSIC 3 series, are a parcel of land at Kissieman, parcel of land at Frafraha on the Dodowa road, parcel of land at Kwabenya, a parcel of land at Community 13, Tema, parcel of land at Akim Oda in the Birim South District and parcel of land at Mepom, near Asamankese. In all the mortgaged agreements entered into between the parties they all have clause 4:0 captioned Restrictions on the Mortgagor and states as follows:

“4.1 The Mortgagor shall not have the power except with written consent of the Bank:

4:.1.1 To create any further mortgage, charge or lien ranking in priority to or paripasu with the mortgage or

4.1.2 To sell, let or part with the possession or otherwise dispose of any part of the mortgaged property

4.1.3 To exercise any statutory or other powers of granting or agreeing to grant or of accepting or agreeing to accept surrenders or leases or tenancies of the present or future freehold and leasehold of the mortgaged property”

 

This is a provision found in all the mortgage agreements entered into between the parties. Respondents have not denied the existence of the mortgaged agreements but only claim that it has “an unfettered right in law irrespective of having mortgaged them to put up their properties for sale subject to their statutory right of redemption and upon receiving offers from prospective buyers obtain the consent of the Applicant to the sale”. It is not disputed that a mortgage only operates not to transfer ownership of the property to the mortgagee but only serves as security for the due repayment of the loan. And the law permits a mortgagor to transfer or sell all or part with his interest in the mortgage property unless there is a specific requirement by law or a contrary intention appears from the mortgage deed. See section 12(1) of the Mortgages Act, NRCD 96 which states as follows:

“Unless a contrary intention appears expressly or by necessary implication, a mortgagor may transfer all or any part of his interest in the mortgaged property at any time without the concurrence of the mortgagee”.

 

I find that there seems to be a contrary intention expressed by the parties under Clause 4 of the Mortgage agreements wherein restrictions have been placed on the right of the mortgagor on the way he can deal with the property as long as the debt secured by the mortgage property still exist. He cannot sell or attempt to do without the express written consent of the mortgagee to dispose off the property and the claim that the Respondents have unfettered right to sell the properties irrespective of the mortgage agreements cannot be correct by virtue of Clause 4 of the mortgage agreements. Indeed by sections 12A and 13 of NRCD 96, for such transfers to be valid it must be with the consent of the mortgagee and any sale or alienation where there is disposition of the mortgagee’s interest in the property shall be deemed to be void. Mortgagors have been viewed since the middle ages in England as necessitous persons who do not have a free will. In fact, Lord Henley sums the fetter on the rights of a mortgagor on his mortgaged property in the case of VERNON v BETHEL [1762] E Eden 110 @113 as follows:

“Necessitous men are not, truly speaking, free men, but to answer a present exigency, will submit to any terms that the crafty may impose upon them”.

 

The Applicant is accusing the Respondents of engaging in acts that amounts to criminality with an attempted sale of some of the properties, is evidence that some of the engagements have been done without the consent of the Applicant as expressed in Clause 4 of the agreements. The mortgagee, by the agreements must be made aware right from the time that the mortgagor intends to sell the property to liquidate the debt of the mortgagor so as to ensure that the security for the loans granted is not dissipated and the monies realised from a sale is not diverted for other purposes.

 

As long as the express consent of the Applicant has not been secured for the sale of any mortgaged property by the Respondents, I find it apt to grant the application to restrain the Respondents, their agents and persons claiming through them from selling, parting with or disposing of the mortgaged properties except with the express written consent of the Applicant, which consent may be granted solely for the purpose of the monies realised from the sale being used to liquidate the debt or any part of the debt, if any of the Respondents.

 

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