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MARGARET
INSAIDOO J (MS).
RULING
This is a ruling on an application
by a tenant applicant that has
been affected by an order of this
court made in favour of the
Plaintiff to recover possession of
the property sold to them by the
Judgment Debtor.
His main reason is based on Order
43 Rule (2) and (3) which state as
follows:-
(2) A writ of possession to
enforce the recovery of possession
of immovable property shall not be
issued without leave of the court
except where the judgment or
order was given or made in a
mortgage action to which Order
56 applies.
(3) The leave shall not be granted
unless it is shown that every
person in actual possession of the
whole or any part of the immovable
property has received such notice
of
the proceedings
as
appears
to
the Court sufficient
to
enable the person apply
to
the court for any relief
to
which the person may be entitled."
That the provision is mandatory
and the court failed to comply
with that provision and thus the
court lacked jurisdiction to make
the Order under review.
He cited several cases, among
which was the case of Heward Mills
vs. Heward Mills [1992-93] GBR 239
"Where
a
statutory condition must be
complied with before
a
court can have jurisdiction to
make an Order: The failure to
comply with such
a
condition would leave the court
with no discretion to make any
Order or Orders as in that
matter."
Likewise
Masi vs. Bagyina
"That the Applicant although
concedes that its tenancy had
expired, said that its current
position was one of a sitting
tenant or a statutory tenant.
That it had paid rent up to 30th
December 2005.
In response,
Plaintiff/Judgment/Creditor/Respondent
averred that the Order for
Delivery made by this court was
properly made and that the
applicant had sufficient notice of
the proceedings before this court.
In any case the applicant is
estopped from litigating this
matter having regard to its own
undertaking made in November 2006.
Prior to this, there had been
numerous meetings between the
Plaintiff, Defendant and the
Applicant with a view to obtaining
vacant possession.
CONCLUSIONS
I have read and heard all
submissions and authorities by
both counsel and have come to the
conclusion that Order 43 Rule 3
had been complied with the
applicant having had sufficient
notice of the proceedings. The
applicant has been engaged in
negotiations for vacant possession
since August 2006; after judgment
had been given in this matter.
However, in view of the relative
hardship that will be suffered by
the applicant, the applicant is
given 3 months to vacate the
premises.
Meanwhile the Defendants are to
consider the value of the
'improvements made by the
applicant to the property in
charging the rent and reconciling
same with rent due.
Further that having regarding to
the previous conduct of this
applicant, at the expiry of the 3
months period, the Plaintiff is
given leave to recover possession
of the premises without recourse
to the courts.
Costs of five million cedis
(¢5,000,000.00) awarded to the
Plaintiff.
(SGD.) MARGARET INSAIDOO
J
(MS)
PARTIES ABSENT
COUNSEL:
OPOKU AGYAE FOR THE APPLICANT
GEORGE SARPONG WITH MAJ. GYASI FOR
THE PLAINTIFF
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