BUSINESS MANAGEMENT & FINANCIAL INSTITUTION LTD. & ORS v. ECOBANK GHANA LTD.
2022
COURT OF APPEAL
GHANA
CORAM
- HENRY KWOFIE JA (PRESIDING)
- AMMA GAISIE JA
- RICHARD ADJEI-FRIMPONG JA
Areas of Law
- Civil Procedure
- Banking and Finance Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Henry Kwofie JA, writing for the Court of Appeal, dismissed an appeal by Business Management and Financial Institute Ltd and its co-appellants arising from the High Court’s strike-out of their fresh suit against Ecobank Ghana Ltd. After a Commercial Division action ended with a 18 May 2020 judgment for Ecobank on a loan default, Ecobank commenced execution, advertising a judicial sale of property at No. 33, New Gbawe. The borrowers then sued in the General Jurisdiction, alleging “fraudulent deductions” totaling GH¢740,554.21 based on a post-judgment audit. The High Court dismissed the action under Order 11 rule 18(1)(b),(d). On appeal, the Court struck out the omnibus “weight of evidence” ground and held that the alleged fraud was premised on evidence available at the first trial, invoking Henderson v Henderson and the due‑diligence requirement from In Re Poku. Concluding the ruling was unimpeachable, the Court dismissed the appeal, with Justices Amma Gaisie JA and Richard Adjei‑Frimpong JA concurring.
HENRY KWOFIE JA:
This is an appeal against the ruling of the High Court Accra, delivered on 22nd July 2021. In that ruling the trial judge dismissed the action instituted by the plaintiffs/appellants under Order 11 rule 18(1) (b) and (d) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
Dissatisfied with the said ruling, the plaintiffs/appellants launched the instant appeal on 16th August, 2021 on the following grounds:
i) The ruling is against the weight of evidence.
ii) The trial judge erred when she held that defendants/respondents had taken various steps in the process of execution without any opposition or challenge from the plaintiffs/appellants until there was an advert in the Ghanaian Times Newspaper of an auction sale of their property to defray their indebtedness
iii) The trial judge erred in concluding that the plaintiffs/appellants herein are not seeking to impeach the judgment of the Commercial Court whose judgment was based on evidence available at the trial.
iv) The trial judge erred when she concluded that because the appellants admitted their indebtedness albeit mistakenly, they cannot continue to have doubts about its correctness and therefore seek relief.
v) The trial judge erred when she ignored the evidence of a professional auditor retained by the appellants because the respondents were not involved in that exercise and he was not appointed by the Court.
vi) The trial judge erred when she concluded that the statement of account in the previous trial is the same in the instant case.
vii) The trial judge erred when she failed to appreciate and give sufficient consideration to the case of the appellants
viii) Additional grounds of appeal to be filed upon receipt of the record of appeal.
The relief sought from the Court of Appeal is a reversal or setting aside of the ruling of the High Court in favour of the respondent.
The ruling appealed from is at pages 120 to 131 of the record of appeal. In the judgment, the parties will be described by their description at the Court below.
The facts giving rise to the plaintiffs action which has culminated in this appeal are as follows:
In or about March 2011, the appellants entered into a loan agreement with the respondent bank but subsequently defaulted in paying back the loan. As a result the respondent bank instituted an action at the High Court (Commercial Division) Accra entitled: Ecobank (Gh) Ltd. vs. Business Management and Financial Institute Ltd & 3 others (suit No. C