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IN THE HIGH COURT OF JUSTICE ACCRA COMMERCIAL DIVISION,

THE 1^ST DAY OF MARCH 2007.

SUIT NO: BFS/07/06

                           METROPOLITAN & ALLIED BANK              PLAINTIFF

                                               VS.

                             KRISPOL ESTATES LTD

                             CHRISTOPHER SAMPSON                        DEFENDANTS

                             STEFANO POL

 MARGARET INSAIDOO J (MS).

RULING

This ruling is in respect of an application by the 1⁵¹ & 2^nd Defendant/ Judgment Debtor/applicant to set aside the judgment debt and for stay of execution.

The reason' adduced was that the Auction that was conducted on 22^nd January 2007 did not meet the requirements of the Auction Sales Law, 1989, PNDCL 230 particularly Section 21 and also Order 45 rule 10(1)and(2).

Order 45 10(1) reads as follows:

"At any time within twenty-one days from the date of the sale of any immovable property, an application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant proves to the satisfaction of the Court that he has sustained substantial injury by reason of the irregularity. "

Order 45 10 (2) reads as follows:

"If the application is granted by the Court, the Court shall make an order setting aside the sale for irregularity, and thereupon the purchaser shall be entitled to receive back any money deposited or paid by such parties and in such manner as the Court may direct."

The applicant alleged that they were not properly notified. They had a notice for the sale, which was fixed for the 31⁵¹ of January 2007, a search revealed as such. However they were informed that indeed and in fact an auction sale of their property took place on the 22^nd of January 2007 and a purchaser by name Y ABBS Construction Ltd. had sent the property to the Brong Ahafo Region.

The purchase price was ¢250 million cedis. Thus the sale lacked authority and was therefore null and void.

Section 21 Sub rule (5) of PNDCL 230

"An auctioneer has no implied authority to conclude a sale by private contract but where the vendor accepts a purchaser introduced by the auctioneer and the vendor himself concludes a sale to such purchaser by private treaty, the auctioneer has a right to claim remuneration from the vendor. JJ

The Applicant therefore prayed that the auction sale be set aside and the purchaser ordered to return the items to the appropriate custody.

Counsel for the Plaintiff/Judgment/Creditor/

Respondent in response said that they notified the Applicant appropriately and that there were two types of properties namely movables and immovable and the requisite notification for each category.

They relied on notices issued by the Registry namely 22^nd January 2007 for the auction to be conducted on the movables (after giving the required 7 days notice as per Order 45 Rule 9) and the notice of the immovable was 31^st January 2007 also in compliance with the 21 days requirement for the auction sale of immovable Property.

In any case the applicants are not saying that they have occasioned any loss, neither are they are saying that the goods were sold at a lower price; their concern is with notification, which they the Plaintiff/Respondent had complied with.

Thus in their view the sale was properly made and no useful purpose would be served if it were set aside.

CONCLUSIONS

Having heard the submissions of both Counsel, and read all the authorities, it is my opinion that the Auction Sale of 22^nd January 2007 was regularly conducted and quite valid and complied with the Rules.

However, this court was informed later on by counsel for the 3^rd Defendant Mr. Annancy per an application dated 30^th January 2007 with annexures, which indicated that there had been a previous Preservation Order on the property of the 1 st Defendant Company by a court of Coordinate Jurisdiction, namely the Fast Track High Court ..

The said Order is dated 11^th May 2006.

The proceedings of that court were not brought to this court's attention by Counsel for the 1^st and 2^nd Defendants, a situation which I find most unfortunate and regrettable.

In the circumstances therefore and also in view of the fact that the 2^nd Defendant has personally discharged his liability with the Plaintiff/Judgment/Creditor, the Auction Sale of 22^nd January 2007 is set aside.

The monies paid into court is to be refunded to the Purchaser and the Purchaser is Ordered to return the Movables to the 1st Defendant Company.

(SGD.) MARGARET INSAIDOO  J  (MRS)