BANK OF AFRICA GHANA LTD. v. 2K FARMS LTD. & ORS
2015
COURT OF APPEAL
GHANA
CORAM
- DOTSE, JSC (PRESIDING)
- GBADEGBE, JSC
- PWAMANG, JSC
- DORDZIE (MRS), JSC
- KOTEY, JSC
Areas of Law
- Contract Law
- Civil Procedure
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellants were sued by the respondent to recover a loan facility. The trial court entered a default judgment against the appellants due to their failure to file a defence. The appellants' motion to set aside the default judgment was dismissed because they did not provide a convincing defence. They argued that a pest infestation qualified as an act of God under a Participation Agreement with EDIF. The trial court's decision was affirmed on appeal, citing that the appellants failed to show that an act of God defence was reasonable and that the default judgment was regularly obtained.
SOWAH, J.A:
The 1st, 2nd and 3rd defendants/appellants [hereinafter referred to simply as the appellants] were sued by the plaintiff/respondent for recovery of “an EDIF term loan facility totaling GH¢400,340.70 to enable the 1st defendant acquire a Drip Irrigation System, Pack-House and Cold store, to purchase Cold store van and delivery truck and also to augment its working capital”. The defendants entered appearance but failed to file their statement of defence within the time limited by the Rules. Thus, judgment in default of defence was entered against them on 26 June 2013, and the plaintiff initiated execution process. On 28 February 2014, the defendants filed a motion to set aside the default judgment. In the affidavit in support of the application, the 3rd defendant deposed that whilst trying to resolve the issue of their indebtedness with the plaintiff, they had been informed by an insider at the Export Development and Agricultural Investment Fund [EDIF] that EDIF had entered into a Participation Agreement with the plaintiff. The defendants claimed that by virtue of that agreement any loan that could not be repaid due to the total failure of a project that was attributable to an act of God could be declared a bad debt by EDIF and written off. The defendants’ contention was that the issue of the Participation Agreement had opened the door for them to raise a defence to the claim of the plaintiff hence prayed for the default judgment to be set aside and given an opportunity to defend the Suit.
The Record does not contain the proposed statement of defence and counterclaim which the appellants purported they had attached as exhibit ‘C’ to their affidavit in support. However, it is deductible from the depositions in the affidavit that their defence was going to be that bugs had infested the pawpaw farms which was their core business. They considered that this qualified as an act of God
In his Ruling on 9 April 2014, which refused the application, the trial judge held that the application had no merit. He said:
“The applicants have not shown any reasonable defence they intend to put up. The fact that EDIF may write off a debt does not preclude the plaintiff's from pursuing the defendants for the facility they extended to them.
If truly EDIF is in a position to write off the debt, they can do so even after judgment.
The application is dismissed.”
It is against this Ruling that the appellants have appealed on the following grounds:
a. The learn