LAWRENCE BRUCE KYEI v. FIRST ALLIED SAVINGS AND LOANS LTD
April 2, 2019
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE, J
Areas of Law
- Civil Procedure
- Contract Law
- Evidence Law
April 2, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Dr. Richmond Osei-Hwere, J., ruled on a motion by First Allied Savings and Loans Ltd (FASL) to set aside a default judgment and halt execution in a suit brought by investor Lawrence Bruce Kyei seeking recovery of fixed deposits and interest. FASL entered appearance but failed to file a defence or respond to the motion, leading to a default judgment on 2 November 2018 and entry of judgment on 9 November 2018. After execution began, FASL and Darls Legal Consult executed an agreement on 27 November 2018 acknowledging indebtedness to Kyei of GHS 1,107,289.99, pledging vehicles and agreeing to a payment schedule. FASL argued the agreement was invalid because Kyei was not a party, but the court applied section 5(1) of the Contracts Act to permit third‑party reliance. Finding the judgment regular, no reasonable excuse for default, and admissions eliminating any arguable defence, the court dismissed the application, left execution undisturbed, and made no order as to costs.
RULING
This is a motion on notice praying this Honourable Court for an order setting aside the default judgment entered against the Defendant/Applicant and for leave to file a statement of defence. The applicant is also seeking an order to set aside the Entry of Judgment and all execution processes taken pursuant to the default judgment.
The grounds of the application are contained in the Affidavit in Support filed on the 5th of March, 2019.
The background to this application is that the Plaintiff/Applicant/Respondent (hereinafter referred to as the Respondent) issued a Writ of Summons against the Defendant/Respondent/Applicant (hereinafter referred to as the Applicant) on the 13th of July, 2018. The Respondent’s claim against the Applicant are for:
a. An order for the recovery of cash, the sum of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500, 000.00), being the amount of money invested as a fixed deposit in the Defendant’s Institution, the said investment being made on 2nd June, 2018.
b. Interest on the of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500, 000.00) as agreed per the fixed deposit agreement entered into between the Plaintiff and the Defendant till date of final payment.
c. An order for the recovery of cash, the sum of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500,000.00), being the amount of money invested as a fixed deposit in the Defendant’s Institution, the said investment being made on 11th April, 2018.
d. Interest on the of FIVE HUNDRED THOUSAND GHANA CEDIS (GHC500, 000.00) as agreed per the fixed deposit agreement entered into between the Plaintiff and the Defendant till date of final payment.
e. General damages for breach of contract.
f. Cost of litigation.
g. SUCH FURTHER ORDER(S) as this Honourable Court may deem fit.
The applicant was served with the writ of summons and statement of claim on the very day it was issued i.e. 13th July, 2018. On 19th July, 2018 the applicant herein caused its lawyers to enter appearance on its behalf. Subsequently, this Honorable Court entered default judgment in favor of the Respondent on the 2nd November, 2018. This was after the respondent herein had filed a motion on notice for an order for final judgment in default of defence against the applicant herein. On 26th October, 2018, the said motion on notice together with the affidavit in support was served on the applicant through its lawyer but it failed or refused to file an affidavit in response to the motion. When the application came up for hearing