IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
TIGER FORCE MICROFINANCE LTD - (Plaintiff)
KOFI ANNAN SAMSON - (Defendant)
DATE: 15 TH JANUARY, 2018
SUIT NO: MISC/0092/2017
JUDGES: ERIC K. BAFFOUR, ESQ.JUSTICE OF THE HIGH COURT
NANA ABA AKWAABA ACQUAAH, MS. FOR KISSI AGYABENG, ESQ FOR APPLICANT
VICTOR LASSEY, ESQ FOR AGBESI DZAKPASU, ESQ FOR RESPONDENT
Before the court is a motion on notice for a warrant to possess and realize a charged landed property of three–storey building situate at Dome Kwabenya that the Applicant claim was used as security to secure a loan of Gh¢74,000.00. The application has been mounted under sections 33(b) and 34(2) of the Borrowers and Lenders Act, 2008, Act. The Applicant claiming to be a microfinance institution registered and licensed under the laws of Ghana to engage in the business of lending, states in an affidavit sworn to by one Dennis Adjabeng, a lawyer in the firm of Cromwell Gray, LLP that per a loan agreement dated the 23rd of January, 2013 the Applicant disbursed an amount of Seventy-Four Thousand Ghana Cedis (Ghc74,000.00) to the Respondent as a loan payable within a period of six months with the interest rate of Ghc5,920.00 per month.
Applicant further claim that the loan granted the Respondent was secured with a landed property at Dome Kwabenya and the said security was registered with the collateral Registry of the Bank of Ghana under the Borrowers and Lenders Act, Act 773. The Applicant notes that Respondent failed to repay the loan on due date and same was restructured for him. Respondent however again failed to abide by the restructured loan agreement causing Applicant to write to demand for the repayment of all the outstanding loans. The Respondent, according to Applicant undertook to settle the loan but has reneged on that undertaking and is currently indebted to the Applicant in the sum of One Million Four Hundred and Fifty Four Thousand Six Hundred and Fifteen Cedis Nineteen Pesewas (Ghc1, 454,615.19).
To Applicant with Memorandum of no objection obtained from the Bank of Ghana to realize the charged property it seeks before the court a warrant to possess the property and a further order for Police assistance to take peaceful possession. Respondent has fiercely resisted the application for warrant to possess his property in the affidavit deposed in opposition to the application and a supplementary affidavit filed. In the affidavit deposed to on the 28th of June, 2017 he concedes that he took a loan from Applicant and had made payments which does not reflect in the statement of account furnished him by the Applicant. He again contested the flat charge of GH¢400.00 as default charge which was not part of the terms of the agreement and accordingly called for a reconciliation of accounts. However, there seems to have been a volte face in the supplementary affidavit in opposition filed on the 20th of November, 2017.
Respondent contend that Applicant is unknown to him as he once entered into a loan agreement for an amount of Gh¢15,000.00 with an entity called Tiger Force Consultancy Ghana Ltd and that this entity is separate and different from the Applicant who is making a claim against him as he states that his searches at the Registrar General’s Department prove so. To Respondent any loan agreements he might have signed were all signed with Tiger Force Consultancy Ghana Ltd and applicant is unknown to him. He further contends that the loan agreements he signed with Tiger Force Financial Consult and Tiger Force Consultancy Ghana, these entities had no capacity and legal authority to grant loan to him and charge interest. Besides he claim not to have signed any mortgage agreement with Applicant for his house to have been used as security. And any claim of his house having been used as security is nothing but fraudulent. He further depose in support of his fraud allegation that one Mahoney Smith whose name appears as the witness is unknown to him.
For the facts deposed to, he concludes that the Applicant is not entitled to the claim for warrant to possess his landed property.
Sections 33(b) and 34(2) of the Borrowers and Lenders Act, Act 773 states as follows:
“Where a borrower fails to pay an amount secured by a charge under this Act, the lender may
(b) realise the security in the property charged on notice to the person in possession of the property.
(2) Where a lender is unable to enforce a right of possession in a peaceable manner, the lender may use the services of the police to evict the borrower or other person in possession pursuant to a warrant issued by a court”.
This provision under which the Applicant has mounted this application was founded on sound commercial business principle of ensuring that commercial lending institutions that give out loans to borrowers are not needlessly taken through the normal and regular procedures of trial from the issuance of a writ to pleadings through evidence taking process when there is unimpeachable evidence that a borrower has no defence whatsoever to a claim. Indeed the law makes it possible for the lender to take possession without even a court order if that can be done in a peaceable manner. In this suit where the Respondent has raised issues regarding fraud. That he did not use his house in Kwabenya as security to secure any loan from the Applicant and further contend that one Mahoney Smith whose name appear on the mortgage document as his witness is totally unknown to him. Counsel for Applicant has argued in court that the allegation of fraud which was thrown in quite late by the Respondent when the Respondent had in his main affidavit not denied owing but only called for reconciliation by contending that some monies paid had not been captured makes the fraud claim a mere red herring. I think that in as much as the claim of fraud was made in the supplementary affidavit of Respondent, as long as it was admitted by the court, I am bound to consider the depositions made in it.
Again, can one reading the supplementary affidavit in opposition to the application for warrant to possess the property of Respondent say that the claim of fraud is patently a ruse calculated to afford the opportunity to the Respondent to escape the payment of his just debt by the process of possession of his house and sale of same? The particulars provided by the Respondent are many. He claim that the entity known as Tiger Force Consultancy Ltd for which he took the loan is now taking on a chameleon like nature of wanting to be Tiger Force Microfinance Ltd., the Applicant who he claim is unknown to him. There is also the challenge to capacity of the Applicant and the issue of not having signed any mortgage document.
These issues raised are fundamental and I think that the ends of justice would best be served and the allegations properly interrogated and investigated through the issuance of a writ, filing of pleadings and the taking of evidence. The procedure under section 33(b) of the Borrowers and Lenders Act, Act 773 in my view would be unsuitable for resolution of the matters here. As I am unable to make a firm determination of the matters raised here except through evidence at trial after pleadings have been filed, I will decline the application and instead direct the Applicant to file a writ for the matters to be determined at trial.
I make no order as to cost.