AMALGAMATED BANK VS DANIEL MENSAH & ORS.
2015
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE SAMUEL K. A. ASIEDU
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The applicant sought to set aside the sale of his property based on an Entry of Judgment that was previously set aside. The court found that for an act to be declared illegal, it must breach a statute or common law. The sale, conducted under the Auction Sales Act, was not illegal solely due to the error in the Entry of Judgment. Furthermore, motions to set aside a sale must be filed within 21 days per Order 45 rule 10 of the Rules of Civil Procedure. The applicant's motion was filed beyond this timeframe and was therefore dismissed.
The instant motion seeks an order of the court to set aside illegal execution.
In particular, the applicant seeks an order setting aside the sale of the applicant’s house at Nii Boi Town/Nii Boiman Accra pursuant to the said execution.
On the 24th day of July, 2014, the applicant successfully applied and the court set aside the Entry of Judgment filed in this case by the Respondent on the 22nd day of March, 2012. The reason for setting aside the Entry of Judgment was that the Plaintiff had admitted that the said Entry of Judgment had, stated thereon, sums of money in excess of what was in fact due the plaintiff from the defendant/applicant.
The sum total of the applicant’s argument herein and its effect is that once the Entry of Judgment has been set aside, the sale of the property must also be set aside, because, according to the applicant, the sale was founded upon the said Entry of Judgement.
The Plaintiff/Respondent has expressed its opposition to the instant application.
The applicant says the sale was illegal and although the applicant had not clearly stated in the affidavit what makes the sale illegal, it could be gleaned from the affidavit that the reason for so arguing is that the Entry of Judgment, as already pointed out, contained amounts in excess of what was due to the plaintiff.
In the opinion of the court, for an act to be declared illegal, it must be shown that the said act was in breach of either a provision of a Statute that is an Act of Parliament other than the Rules of Procedure or that it was in breach of an established rule of the Common Law other than a rule of procedure.
It cannot be reasonably denied that the sale which the applicant seeks to set aside was conducted by auction and the property in question was sold on the 12th day of November, 2014. The applicant has not shown that any provision of the Auction Sales Act, 1989, PNDCL 230 which governs the sale of property attached under execution of a judgment of a court as in the instant matter has been breached.
Neither has the applicant shown that the sale which he seeks to set aside was conducted in breach of any rule of the Common Law.
What the applicant seeks to set aside is the sale of the property attached in execution of the judgement entered by consent of the parties.
The applicant does not, in the present motion, seek to set aside the Entry of Judgment.
Hence, it is the duty of the Applicant to prove to the satisfaction of the court that the sale which he seeks