TOP KINGS ENTERPRISE LTD. & OTHERS v. AMALAMATED BANK LTD.
2015
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU, J.A. (PRESIDING)
- VICTOR OFOE, J.A.
- A. M DORDZIE, JA
Areas of Law
- Commercial Law
- Civil Procedure
- Contract Law
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case revolves around the appellants' default on a loan facility granted by Amalgamated Bank Ltd. After obtaining a consent judgment based on restructured loan terms, the appellants defaulted again, leading the bank to initiate execution processes. The appellants' motion to set aside the judgment, arguing a compromise of the consent judgment, was denied by the trial court. The appeal focused on whether the trial court's decision was against the weight of evidence, whether there was an error in dismissing the application due to a supposed variation, and whether the new repayment arrangement constituted a variation of the consent judgment. The appeal was dismissed in its entirety.
A.M.A. DORDZIE, J. A.
The respondent in this appeal, Amalgamated Bank Ltd, granted the appellants a loan facility totaling GHc411, 500.00. The appellants defaulted in paying the loan facility.
In an effort to recover the loan the bank instituted an action in the Commercial Division of the High Court claiming:
a) Recovery of a total sum of GHc543,979.01 being accrued principal and interest due on the facility granted the appellants
b) Interest on the said amount - Ghc543,979.01
c) Realization of security
d) Cost
The defendants challenged these claims and maintained that the plaintiff conducted itself in such a way that changed the terms of the loan facility and frustrated the 1st defendant’s ability to repay the loan. The defendants therefore counter claimed for general damages for breach of the agreement between the parties.
The parties agreed to amicably settle their differences and filed terms of settlement on the 18th of May 2012. The terms of settlement are as follows:
(1) “The debt has been restructured to two (2) facilities as follows:
Facility 1:
i. Conversion of Overdraft to loan of an amount of six hundred and twenty-one thousand, nine hundred and ninety-three Ghana cedis and ninety pesewas (Ghc621,993.90) which continue to accrue interest on daily basis.
Facility 2:
ii. Additional loan in the amount of two hundred and fifty thousand United States Dollars (USD250, 000).
iii. The defendants shall have a five (5) month moratorium period commencing October 2011 and shall pay both facilities over six (6) months commencing 31st March 2012.
iv. The repayment will be a single bullet payment at the end of the six (6) months being September 2012.
v. The interest on facility (1) above will be charged at base rate (currently 23.95) plus 4.5 per annum collectible (subject to variations in line with market trends).
vi. Interest on facility (2) above will be charged at 14% per annum collectible (subject to variations in line with market trends)
vii. That both facilities shall be secured with a mortgage property situate at Adabraka with a forced sale value of one million and hundred thousand United States Dollars (USD1, 100,000.00)
2. That in the event of default of payment at the end of the period agreed upon, plaintiff will be entitled to go into execution without leave of this Court
3. That these terms of settlement shall be entered as consent judgment by the Honourable Court.”
On the 31st of May 2012 the High Court entered the above st