HOME         UNREPORTED  CASES OF THE COURT

 OF

AUTHOMATED COURTS ACCRA 

SUIT NO. AB 36/2004

FIRST ATLANTIC MERCHANT BANK    -        PLAINTIFF/RESPONDENT

VS.

MARIVILLE HOMES LTD.                            -        DEFENDANT/APPLICANT

_________________________________________________________

2^ND DEFENDANT APPLICANT PRESENT

OTHER DEFENDANTS ABSENT

R U L I N G

This ruling is in respect of an application by the defendants/judgment/

debtors “for an order for leave to set aside the purported sale of the mortgaged property, H/No. 107, 10^th Avenue, Nungua also known as Fort Seyram situate at Nungua, Accra carried out on the 12^th March, 2011”.

The application was filed on 9^th December, 2011.  Two main grounds canvassed in support of this application are:

a.            that the plaintiff/judgment/creditor failed to attach and sell the movables of the defendants/judgment/debtors before levying execution on its immovable property;

b.            that the processes leading to the sale of the immovable property did not follow due process.

On the first ground I think the applications are confusing themselves over execution of judgments generally on the one hand and execution of judgments specifically in respect of secured debts. 

In respect of executions of judgments obtained generally it is the movables which have to be attached first and sold before going after immovables if the first execution could not satisfy the judgment debt.

On the other hand if a judgment is obtained over a secured debt like in the instant case, the judgment/creditor is to attach the security first in execution to defray the judgment debt.  If the proceeds of the execution is in sufficient to defray the judgment debt then the judgment/creditor is entitled to proceed against non-secured properties in which case he has to proceed against movables before any immovables.

Thus the plaintiff/judgment/creditor in the instant case was entitled to proceed against the mortgaged property first to defray the judgment debt.

This brings one to the issue of whether in levying execution over the mortgaged property the plaintiff/judgment/creditor followed due process.

By section 16(2) of the Auction Sales Act, 1989 (P.N.D.C.L 230), an auction sale arising out of a judgment debt is subject to a reserved price which is determined by the court which gave the judgment.  In this case the plaintiff/judgment/creditor/respondent on 3^rd May, 2006 applied to this court for a reserved price.  This application was served on the defendants/

Judgment/debtors/applicants herein on 23^rd July, 2007.  Attached to the application was the valuation report.  The property was auctioned twice: first on 7^th July 2010 and later on 18^th March, 2011 after publication of several notices to that effect.  The contention of the applicants that they had no notice of the application for the reserved price and the hearing of the application as well as the notice of the auction is not borne out by the evidence on record.

Further more the 1^st and 3^rd defendants/applicants brought the same application to set aside the sale of the mortgaged property but same was dismissed by this court on 7^th September, 2011.  Adding the 2^nd defendant/

Applicant and repeating the same application is of no consequence for the matter is res judicata.

The present application of the defendants is a complete abuse of the processes of this court and the same is accordingly dismissed.  The plaintiff/respondent is awarded cost of GH¢1,000.00.

   SGD.) UUTER PAUL DERY

JUSTICE OF THE HIGH COURT

*aq*