IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
AGRICULTURAL DEVELPOMENT BANK - (Plaintiff)
FIIFFI QUARTEY - (Defendant)
DATE: 4TH FEBRUARY, 2016
SUIT NO: BFS/205/2015
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
The Plaintiff/Applicant by this Ex parte application seems to root this motion under Order 10 Rule (1) of the High Court (Civil Procedure) Rules, C.I 47 and seeks final judgment against the defendant for his failure to enter appearance and file a defence upon service of the writ of summons and the statement of claim. When the application came on for hearing the court indicated to the counsel for the applicant that the present applicant was incompetent as not mandated by the rules of procedure. Counsel nonetheless, contested this claim and the court adjourned to give a reasoned ruling for describing the application as defective. The reasons of the court is provided as follows:
The plaintiff claims for a liquidated sum being loans advanced to the defendant that Plaintiff contends defendant has defaulted in repayment. This should ordinarily bring it within the scope of order 10 Rule 1 (1) of C. I. 47 which states as follows:
“Where the plaintiff’s claim against the defendant is for a liquidated demand only, and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance only to enter final judgment against the defendant for a sum not exceeding that claimed by the writ and for costs and proceed with the action against other defendants, if any”
At first glance, one would be tempted to conclude that the present action has justly and truly been mounted in pursuance of this rule quoted supra. But this suit is not just an action for recovery of monies due and owed. It is a mortgage action and mortgage actions have their own special rules and procedure that an applicant must follow when seeking a judgment in default of appearance. Counsel denied that his action is a mortgage action. What then is a mortgage action becomes crucial for determination in knowing if the present suit is one or not. Section 1 of the Mortgages Act, NRCD 96 defines what a mortgage is in law as follows:
“A mortgage … is a contract charging immovable property as security for the due repayment of debt and any interest accruing thereon or for the performance of some other obligation for which it is given, in accordance with the terms of the contract”
And Black’s Law Dictionary, 9th Ed defines Mortgage as a:
“lien against property that is granted to secure an obligation such as a debt and that is extinguished upon payment or performance according to stipulated terms”
And section 2 of the Mortgages Act notes that every transaction which is in substance a mortgage of immovable property whether expressed as mortgage, charge, pledge of title documents, outright conveyance, trust for sale on condition, lease, hire purchase, conditional sale, sale with right of repurchase or in any other manner, shall be deemed to be a mortgage of immovable property.
The last relief of plaintiff is for an order for the judicial sale of residential property located at Sakumono, Tema in the Greater Accra Region. And how did plaintiff become vested with the cause to ask for a judicial sale of an immovable residential property? This can be found by paragraph 6 of the averment of plaintiff in his statement of claim wherein he states that:
“Plaintiff claims that as security for the loans, Defendant executed a deed of mortgage in favour of plaintiff over residential property situate at Sakumono estates”
This clearly from plaintiff’s own case before the court is that he gave out loans and as security for the loans, there was a charge of immovable property at Sakumono. He describes it as a mortgage and even if he had not by section 2 of the Mortgages Act, supra such a transaction is a mortgage action. Rule 1(2) of Order 59 of the High Court (Civil Procedure) Rules also defines a mortgage action as:
“mortgage action” means an action in which there is a claim by the plaintiff for any of the following relief’s:
(a) Payment of moneys secured by a mortgage or charge
(b) Sale of the mortgage property
(c) Appointment of a receiver
(d) Delivery of possession to the mortgagee or person entitled to the charge by the mortgagor or persons having the property subject to the charge or by any other person who is or is alleged to be in possession of the property;
(e) Release of the property from the security
(f) Delivery of possession by the mortgagee
This is an action for payment of monies secured by a mortgage property at Sakumono or in the alternative order for the sale of the mortgage property. The action is within the four corners of (a) and
(b) of the Rule 1 of Order 59 quoted supra. It is therefore not correct for counsel to suggest that the claim is not a mortgage action.
What then is the procedure for seeking judgment in a mortgage action when a defendant fails to file an appearance before the court.
The answer is provided for by the Order 59 of the High Court Civil Procedure Rules, C. I. 47. Rule 5 states that:
“(1) In a mortgage action, judgment in default of appearance or in default of defence shall not be entered except with leave of the Court.
(2) Notice of an application for the grant of leave under this rule shall be served on the defendant”.
The applicant came by motion ex parte that clearly sin against the provisions supra as where the rules call for an application on notice an applicant cannot disregard that and makes it ex parte without any just cause shown to the court.
Besides, the application was bedeviled with other substantial challenges such that even if the application had been on notice the court cannot ignore those deficiencies and grant the applicant its prayers. The writ of the plaintiff is within sections 15 and 18 of the Mortgages Act, NRCD 96 as it has sued the mortgagor for the performance of its obligations under the contract or for a judicial sale. If that is the case, then an action brought within the scope of sections 15, 16, 17, 18 and 20 of the Mortgages Act must fully comply with Rule 3 of order 59 with regard to some particulars that must be evident in the statement of claim as the rule states:
“Every statement of claim in a moneylenders or mortgage action shall state
(a) The date on which the loan was made
(b) The actual amount granted to the borrower
(c) The percentage of interest charged
(d) The date in which the contract for repayment was made
(e) Evidence of a note or memorandum of contract with the borrowers signature
(f) The date it was made and the date a copy of same was delivered or sent to the borrower
(g) The amount repaid
(h)The amount due but unpaid
(i) The date the unpaid amount became due
(j) The amount of interest accrued, due and unpaid on the sum”
Examining plaintiff’s claim I reckon that the plaintiff only complied with (a), (b) and (c). There is no evidence of a memorandum of contract with the defendant/mortgagor’s signature on, the applicant has not shown how much the defendant/mortgagor has repaid, the principal amount unpaid, the amount of interest accrued and due and unpaid.
It is therefore not for nothing that the court aptly described the application as irredeemably and incurably incompetent. The application for the reasons provided is accordingly dismissed.
ERIC K. BAFFOUR, ESQ.
JUSTICE OF THE HIGH COURT