BANK OF AFRICA GHANA LTD. vs. 2K FARMS LTD. & 2 ORS. [2015]DLCA4440

Date	2015-06-18
Suit No.	SUIT NO: H1/83/2015
Citation No.	[2015]DLCA4440

OFOE J.A. (PRESIDING)

KORBIEH J.A.

SOWAH J.A.

JOSEPH AWAKGASA FOR 1ST – 3RD DEFENDANTS/APPELLANTS

MAGME SARPONG FOR PLAINTIFF/RESPONDENT

[2015]DLCA4440
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													<main id="main" class="content" style="min-height: 60rem" >BANK OF AFRICA GHANA LTD.<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>2K FARMS LTD. &amp; 2 ORS.<o:p></o:p>(DEFENDANTS/ APELLANTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO:&nbsp; H1/83/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18TH JUNE,
2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>JOSEPH
AWAKGASA FOR 1ST – 3RD DEFENDANTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MAGME
SARPONG FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OFOE
J.A. (PRESIDING), KORBIEH J.A.,SOWAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>SOWAH, J.A:<o:p></o:p>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. <o:p></o:p><o:p>&nbsp;</o:p>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<o:p></o:p><o:p>&nbsp;</o:p>In his Ruling on 9 April 2014,
which refused the application, the trial judge held that the application had no
merit. He said:<o:p></o:p>“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.<o:p></o:p>