ECOBANK GHANA LIMITED vs YURI-M PLASTIC PRODUCTS GH. LTD. & ANOTHER
December 13, 2022
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE AFI AGBANU KUDOMOR (MRS.)
Areas of Law
- Civil Procedure
- Banking and Finance Law
- Corporate Law
- Contract Law
December 13, 2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
This High Court ruling by Her Ladyship Justice Afi Agbanu Kudomor concerns an application by Yuri M Plastic Products, the first defendant and judgment debtor in suit BFS/338/2010, to set aside a garnishee order nisi obtained by The Trust Bank Ghana Limited (now Ecobank Ghana Ltd). Reviewing related litigation, the court noted Justice Torkonoo JAs 2015 judgment in OCC/17/12, which found that Ecobank and shareholder Alfred Asihene perpetrated fraud in the loan transactions and awarded GHC 4 million to offset Yuri M Plastic Products obligations. In 2019, Justice Mensah Homiah J in OCC/39/15 refused to set aside the 2012 judgment but clarified enforcement could be against Asihene. Applying the coordinate-jurisdiction rule from Punjabi v Namih and the res judicata findings, the court concluded the BFS/338/2010 judgment could not be enforced against the company. Due to nondisclosure and bad faith in obtaining the garnishee, the order nisi was set aside and costs of GHC 10,000 were awarded.
APPLICATION FOR AN ORDER SETTING ASIDE THE GARNISHEE ORDER NISI DATED 18TH JANUARY 2020
The instant application has been made on behalf of the 1st Defendant Judgment Debtor Applicant (hereinafter referred to as Applicant) for an order setting aside the Garnishee Order Nisi granted by this Court dated 18th January 2022 attached as Exhibit 1.
THE AFFIDAVIT IN SUPPORT
The grounds for the instant application as deposed to in the affidavit in support of the instant application are that the Court differently constituted has conclusively held that claims arising out of the transaction which gave rise to the judgment could not be made against Applicant but against 2nd Defendant in a judgment per Torkonoo JA (as she then was) (sitting as an additional High court Judge) dated 15th December 2015 in suit number OCC/17/12 attached as Exhibit 2.
That the Court in the said Exhibit 2 held that by reason of the fraud perpetuated by Plaintiff Judgment Creditor Respondent (hereinafter referred to as Respondent) with the connivance and collusion of 2nd Defendant Judgment Debtor (hereinafter referred to as 2nd Defendant) against Applicant, Applicant is not liable to pay the loan sum which is the subject matter of this suit.
That Applicant subsequent to this decision sought to set aside the judgment of this Court in this suit number. That because the Court held that the said judgment was also against 2nd Defendant, it could not set same aside as the judgment in Exhibit 2 had conclusively determined that Respondent could not make claims arising out of the fraudulent transaction resulting in the judgment against Applicant.
That Respondent at the High Court and the Court of Appeal sought to argue that the judgment debt in the instant suit be set off against the Applicant’s judgment against Plaintiff in OCC/17/12, which was rejected by both Courts.
That the said High Court on 8th June 2021 in its ruling (Exhibit 4) held that because the loan was obtained by fraud on the part of Plaintiff with the collusion of 2nd Defendant, the said loan is solely payable personally by 2nd Defendant and not Applicant.
That Respondent fully aware of these decisions by the Courts cannot seek to enforce the judgment in this suit when the transaction resulting in the said judgment has been declared as fraudulent and therefore null and void.
That the sole reason for which Respondent seeks to enforce the judgment against Applicant is because Applicant has obtained a Garnishee Order Absolute agai