|
1992
Constitution - Article 134 (b)
– Review - Decision of a single
Judge - special circumstances -
Notice of sale by Auction – Stay
of Execution – Whether or not
there was a special
circumstances to warrant a
variation of the orders made by
the single Judge - Whether or
not leave was obtained by the
judgment creditors - Whether or
not the Applicants were not the
highest bidders at the auction.-
HEADNOTES
On the 15th
June 2007, the High Court, Accra
delivered a judgment in favour
of the
Co-Defendant/Respondent/Applicant
and held that the said Applicant
was the lawful purchaser of
H/No. 5 Airport West. Aggrieved
by the decision of the High
Court, the Respondents lodged an
appeal against the decision of
the High Court referred to supra
to the Court of Appeal. In the
meantime, pursuant to the said
High Court decision, the
Applicants took possession of
the premises, the subject matter
of that judgment and also of the
instant application. The Court
of Appeal delivered judgment and
ordered the Applicant’s to
vacate the said disputed
property with immediate effect.,
The Applicants, also this time
feeling aggrieved with the Court
of Appeal decision have also
appealed the said decision to
this court.
.
HELD
(1) Our
decision is that, since the
execution by attachment and sale
of the Respondents House Number
5, Airport West was irregularly
done, and same is void at all
times, the contention that there
are arguable points of law to
canvass on appeal is only
wishful thinking.
(2)
Having thus
considered the merits of the
instant application for review
of the single Judge rendered on
1st April 2014, we
are of the opinion that both on
the facts of the case and the
law no special circumstances
exist that warrant the said
rendition to be reviewed by
variation.
(3) This
being an interlocutory
application and not a
substantive appeal in which we
could have done substantial
justice to the applicant by
ordering a refund of the
purchase price of the property
by ADB, pursuant to section 2
(4) of the Court’s Act, 1993,
Act 459 we are constrained to
restrain ourselves from making
any prejudicial statements to
that effect. For the above
reasons, we hold that there
being no exceptional/special and
real circumstances to vary the
order of 1/4/2014, this review
application is dismissed subject
to the Applicant being given
three (3) months from the date
of this ruling to vacate the
premises.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution.
Auction Sales
Act 2006 .Act 716
Court’s Act,
1993, Act 459
CASES
REFERRED TO IN JUDGMENT
Fia kuma v
Cobbina [1991] 2 GLR 369.
Kwabena v
Aninkora and Anor.[1964] GLR
299.
Zakari v
Nkusum Mart [1992] I GLR 1.
Muller v Home
Finance Co. Ltd. [2012] 2 SCGLR
1234
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKAMBA, JSC;-
COUNSEL
BOBBY BANSON WITH HIM RANSFORD OFORI
JNR. FOR THE CO-DEFENDANT/
APPLICANT.
MR. KIZITO
BEYUO WITH HIM NAA ODOFOLEY
NORTEY FOR THE RESPONDENT/
RESPONDENT
RULING
----------------------------------------------------------------------------------------------------------------
DOTSE JSC;-
This is an
application at the behest of the
Co-Defendant/Respondent/Applicant
hereafter referred to simply as
the Applicant seeking an order
varying the decision of a single
Judge of this Court rendered on
the 1st day of April
2014. This application is made
pursuant to article 134 (b) of
the Constitution 1992.
Even though
the issues raised in this
application are in a very narrow
compass, i.e. whether there are
any special circumstances to
warrant the review of the order
made by the single Judge on the
said 1st day of April
2014, we will set out the
historical context of this
application for a full
understanding of the ruling.
On the 15th
June 2007, the High Court, Accra
delivered a judgment in favour
of the
Co-Defendant/Respondent/Applicant
and held that the said Applicant
was the lawful purchaser of
H/No. 5 Airport West. The High
Court specifically held as
follows:-
“The co-defendant claims to be a
bondafide purchaser for value
without notice. Their evidence
was that, there was notice of
sale by Auction of the
property. They attended the
sale, bidded for it and as
the highest bidder, they won.
They subsequently paid for it,
through their Bank, they now
await the issuance of a
Certificate of Purchase to them.
They only knew that the property
was being sold to settle the
indebtedness of the judgment
debtor, namely the plaintiffs
herein. They had no notice of
any impediment to the sale
which was concluded
regularly. I accept the
evidence of the Co- Defendant
and hold that they were
bondafide purchaser for value
without notice.”
A copy of the
said judgment has been attached
to the instant application as
exhibit A. It must also be noted
that, the reference to the
Plaintiff therein is a reference
to the
Plaintiffs/Appellants/Respondents
referred to simply as the
Respondents.
Aggrieved by
the decision of the High Court,
the Respondents lodged an appeal
against the decision of the High
Court referred to supra to the
Court of Appeal. In the
meantime, pursuant to the said
High Court decision, the
Applicants took possession of
the premises, the subject matter
of that judgment and also of the
instant application.
The Court of
Appeal on 6th
February 2014 delivered judgment
in the said appeal lodged
against the High Court judgment
referred to supra and ordered
the Applicant’s to vacate the
said disputed property with
immediate effect.
The
Applicants, also this time
feeling aggrieved with the Court
of Appeal decision have also
appealed the said decision to
this court.
The Court of
Appeal subsequently dismissed an
application for Stay of
Execution at the behest of the
Applicants, to stay the Court of
Appeal decision.
Undaunted,
the Applicants filed yet a
further application to this
Court which was heard by our
respected brother, Akamba JSC as
a single Judge in a brief but
incisive ruling dated 1st
April, 2014 to the following
effect:-
“I am of the view that no
exceptional circumstances have
been urged upon me to warrant a
grant of the application. Also
having read the judgment of the
Court of Appeal I find the
issues complained by the
Applicant dealt by the Court. In
the event, the application is
hereby refused.”
The above are
the orders that the Applicant
urges this review panel of three
to vary upon the following
grounds that have been
forcefully submitted before us
by learned Counsel for the
Applicants, Bobie-Banson.
1.
That, even though the High Court
as at 30th July, 2003
had granted an application for
Stay of Execution in the
original suit between the
Agricultural Development Bank
(hereafter referred to as ADB)
and the Respondents, wherein
they were ordered to pay the
judgment debt by instalments,
Counsel submitted that the
property had already been
attached by sale, to be sold by
auction. He submitted further
that it was only the post
executory processes that had
been put on hold by the order of
30/7/2003 Counsel referred to
the case of Fiakuma v Cobbina
[1991] 2 GLR 369.
2.
The second submission of learned
Counsel for the Applicants was
that the contention by the
Respondents that they had fully
paid the judgment debt had not
been well made out, especially
by reference to their own
attachments which did not
support their prayer that they
had fully paid the judgment
debt
Learned
Counsel for the Applicant’s
therefore submitted that
considering all the above
circumstances a lot of hardship
will be caused them, (the
Applicants) if they should be
made to vacate the premises per
the Court of Appeal judgment and
the decision of the single
Judge.
On his part,
learned Counsel for the
Respondents, Mr. Kizito Beyuo,
in his brief but incisive
submissions stated to the
contrary as follows:-
Learned
counsel submitted that the
appeal lodged against the Court
of Appeal decision has no chance
of success due to the following
reasons:-
i.
That the Applicant must first
establish that the auction sale
at which they purchased the
disputed property was validly
conducted.
ii.
That, the Applicants herein are
not the judgment creditors and
that if the contention of the
judgment creditors (ADB) at all
material times that they
obtained leave of the Court
before going into execution
which has now been proven to be
false, then their bonafides
falls flat and has no
credibility.
In this
respect, learned Counsel
referred to the orders made by
the High Court on 30th
July 2003 between ADB and the
Respondents herein in suit No.
C1106/2000 as follows:
“By Court:-
Application to pay judgment debt
by instalment of ¢50 million a
month until the whole judgment
debt is liquidated. Granted as
prayed in court.
The usual default clause
applies. Payment starts at the
end of August 2003. Registrar to
take note.”.
iii.
Thirdly, it was demonstrated
that the Applicants were not the
highest bidders at the auction
sale.
iv.
Finally, it was submitted that
there being no special
circumstances to warrant a
variation of the orders made by
the single Judge on 1st
April 2014, same need not
be varied.
On the basis
of the above contentions,
learned Counsel urged this court
to dismiss this review
application.
We will now
discuss the issues in detail.
1. NO
LEAVE WAS OBTAINED BEFORE
EXECUTION
From the
processes made available to us
in this court, it is clear that
no leave was obtained by the
judgment creditors, ADB, before
and when they proceeded to
attach and auction the disputed
property contrary to the orders
of the High Court, dated
30/7/2003.
Learned
counsel for the Applicant has
urged this court to come out
with clear guidelines as to the
principles applicable when there
is a usual default clause in
applications for grant of stay
upon payment by instalment and
there is a default. What is the
attitude of the courts in Ghana
on this aspect of the law.
We have
perused the processes put before
us in this court which includes
the judgment of the Court of
Appeal dated 6th
February 2014. We have observed
that the Court of Appeal has
dealt extensively with the said
issue in detail that it is
pointless on our part to
re-visit the issue. For purposes
of emphasis, we will only
reiterate what the Court of
Appeal stated by referring to it
as follows:-
“ We are
satisfied that the existing and
effective order was the latter
one dated 30th
July 2003. Nothing in the
contents of this order shows
that there was a
directive that the plaintiffs
could or were to go into
execution without leave should
the Defendants default again
with their payments.
The High Court being a court
of record would have already
stated so if that had been its
intention. Certainly the
expression “usual default clause
applies” does not on the
authorities mean a judgment
creditor can go into execution
without leave. See the case of
Fia Kuma v Cobbina [1991] 2
GLR 369.”
The plaintiff
in the circumstances cannot have
an answer for the Defendants
position that no leave was
sought before the execution was
carried out even if given an
opportunity to answer as
required by rule 8 (8). This
puts this case squarely into one
of those “special or exceptional
circumstances”
envisaged in the Akufo-Addo
case.
We are
satisfied that the plaintiffs
failed to seek leave before
going into execution and having
failed to seek leave, the
execution in question which
include or consisted of the
auction sale of the
Defendants house was illegal and
void and ought to be set aside.
See the case of Kwabena v
Aninkora and Anor.[1964] GLR
299. “
We are quite
comfortable with the proposition
of the law by the Court of
Appeal. We do not see the need
to make any different
pronouncements of the law other
than what has been ably stated
by the Court of Appeal except to
state that the references to the
plaintiff was reference to ADB
and to Defendant, the Applicant
herein
Our decision
is that, since the execution by
attachment and sale of the
Respondents House Number 5,
Airport West was irregularly
done, and same is void at all
times, the contention that there
are arguable points of law to
canvass on appeal is only
wishful thinking.
WHETHER THE
APPLICANTS WERE THE HIGHEST
BIDDERS AT THE AUCTION
There appears
some documentary evidence on
record to support this
contention that the Applicants
were not the highest bidders at
the auction. Indeed the Court of
Appeal made excellent work of
the said contentions when they
delivered themselves thus:-
“If indeed as
stated by the Defendants in
cross-examination the said Mrs
Bartels had been the highest
bidder then it meant that there
had been a complete contract of
sale between her and the
auctioneer. The cheque
which was allegedly dishonoured
is also evidence of the fact
that she made no
attempt at payment. She could
not retract her bid thereafter.
The auctioneer had certain
remedies available to him in
such circumstances. See section
36 of the Auction Sales Act.
These
remedies do not include selling
the property to the next highest
bidder and indeed it is not the
position of the Co-Defendants
that they purchased the property
as the next highest bidder.
The effect of
Mrs. Bartel’s inability to pay
was that the sale was aborted
and could only be resold at
another auction sale. See the
case of Zakari v Nkusum Mart
[1992] I GLR 1.
The
Co-Defendant is not contending
that he bought the property at
another auction since he claims
he bought the property on 7th
October when the auction in
question took place.
We are
satisfied that the trial Judge’s
finding that the Co-defendant
was the highest bidder is not
borne out by the evidence led at
the trial.”
With the
above statement, we are of the
considered view that the Court
of Appeal dealt adequately with
this issue of whether the
Applicants were the highest
bidders or not.
The thrust of
the Applicants appeal against
the Court of Appeal judgment is
summed up in their only ground
of appeal to this court which is
to the following effect:-
“That the
learned Court of Appeal Judges
erred when they held that the
execution was irregular for want
of leave prior to the sale of
the property.”
Assuming
without admitting that the above
ground of appeal succeeds, what
about the other formidable issue
which is that the Applicants
were not the highest bidders at
the auction?
We are of the
considered opinion that our
respected brother properly
considered all the special
circumstances in this case when
he dismissed on 1st
April 2014 the application for
stay of execution of the Court
of Appeal judgment. Under these
circumstances, it will be
pointless to stay execution of
the judgment.
CONCLUSION
Having thus
considered the merits of the
instant application for review
of the single Judge rendered on
1st April 2014, we
are of the opinion that both on
the facts of the case and the
law no special circumstances
exist that warrant the said
rendition to be reviewed by
variation.
It should
thus be noted that, when an
application for review of a
decision or order of a single
Judge pursuant to article 134
(b) of the Constitution 1992 is
being considered especially when
the order of the single Judge
was on an application for Stay
of Execution, the Court in
delivering its ruling may
consider the following:
1.
The likely success or failure of
the grounds of appeal. This lies
in the Applicants
ability to convince the Court
that there are really serious,
real and
substantial points of law to be
argued on appeal.
2.
The Court must at all times
consider the bonafide’s of the
applicant before
considering the grant or refusal
of such a review application.
3.
The Court must also consider the
relative convenience and or
inconvenience/hardships of the
parties before them. In the
instant case, the
Applicant who had purchased the
Respondents property are seeking
to be permitted to
be allowed to stay in the said
house to the exclusion of the
Respondents who own the
property, despite being ordered
to take over
possession.
4.
The Court must also consider the
equities in the case. For
example, the Applicants did
not give the Respondents time to
stay in their own house during
the appeal hearings, but now
seek to be given time to vacate
within a period of three (3)
months.
5.
The Court must also consider the
steps that had been taken
procedurally by an
Applicant in the case to
determine whether they merit a
review of the single
Judge decision.
On the merits
of this case, since the
Applicants appeared to be more
zealous than ADB, through whom
they derived title if any, then
any irregularity or voidness
associated with ADB, (the
judgment creditors therein)
would in law be passed on to
them. Counsel for the Applicants
should have advised the
Applicants to follow the advice
given by this court in the
unanimous decision in the case
of Muller v Home Finance Co.
Ltd. [2012] 2 SCGLR 1234
particularly at pages 1251.
In that case,
the plaintiff successfully
maintained an action against the
Defendant/Bank who were the
judgment creditors in an earlier
suit resulting in the plaintiff
purchasing a house at a public
auction. Unfortunately, the sale
was set aside and the plaintiff
recovered not only his purchase
price against the Bank, but also
interest.
This being an
interlocutory application and
not a substantive appeal in
which we could have done
substantial justice to the
applicant by ordering a refund
of the purchase price of the
property by ADB, pursuant to
section 2 (4) of the Court’s
Act, 1993, Act 459 we are
constrained to restrain
ourselves from making any
prejudicial statements to that
effect.
For the above
reasons, we hold that there
being no exceptional/special and
real circumstances to vary the
order of 1/4/2014, this review
application is dismissed subject
to the Applicant being given
three (3) months from the date
of this ruling to vacate the
premises.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
COUNSEL
BOBBY BANSON WITH HIM RANSFORD OFORI
JNR. FOR THE
CO-DEFENDANT/APPLICANT.
MR. KIZITO
BEYUO WITH HIM NAA ODOFOLEY
NORTEY FOR THE RESPONDENT/
RESPONDENT
|
